If you’re reading this article on the commute to work, odds are that you’re not happy about it. 

The ‘return to work’ has been the hot topic in employment law for nearly two years now, when widespread uptake of the COVID-19 vaccine meant that it might be safe for employees to return in larger numbers to the office. 

Many have accurately protested that a ‘return to work’ is an unfair label. When the pandemic broke, employees were forced en masse to relocate to makeshift home offices practically overnight. Suddenly bedroom corners, dining room tables, and musty basements needed to double as improvised business centres without any set end date.

For the most part, employees didn’t miss a beat. They quickly learned to rise to the challenges of their new logistics, many while simultaneously having to home school their children, and they managed to succeed in both beyond most employer’s expectations. What’s more? They actually managed to acclimatize to the creature comforts of working from home. 

Now employers and employees are facing the opposite problem - they’ve gotten so used to working from home, that they don’t want to go back, or at least as infrequently as possible.

Employers of all sizes have been wrestling this year with how to navigate that situation. PSAC, the Public Service Alliance of Canada union, recently went through a 12-day strike of over 100,000 members from the Treasury Board and Canada Revenue Agency of the public service who were striking, in large part, for the right to continue working from home. 

On the private side, many large companies are now developing and implementing policies that bring employees back to the office one, two, or even three days a week. They’re working on developing workplace policies that effectively maintain use of office space, while also offering their talented workforce some level of flexibility. 

Yet other employers are taking a more heavy-handed approach. Now that the public health crisis appears to have lifted, some are implementing a firm 5-days a week in the office, warning employees that if they do not comply, they can risk discipline, or even termination. 

So whose side does the law fall on? Can employers force employees back to work, or have employees now firmly entrenched a right to work from home?

What the law says

The short answer, in most cases, is that the employer has the upper hand. 

Deciding an employee’s place of work is, in effect, a management decision. Prior to COVID, if an employee was expected to work from a particular office location, it would be up to the employer’s discretion whether an employee could be granted an exception to work from home. For most employees, working from home was the exception, rather than the rule.

Now that the public health emergency is over, employers more or less have that same right once again. An employee’s place of work is up to an employer’s discretion - whether they want to offer a hybrid solution, have employees work entirely from the office, or whether they want to move the office to a nearby town and a new premises - the freedom is theirs.

Some employees have attempted to argue that employers have set a new precedent by allowing work from home, and that now changing the location of work would be some form of constructive dismissal. That, however, does not represent a serious and substantial change that is required for a claim of constructive dismissal. If the employer moves the place of work to another continent without notice, perhaps, but a return to office simply doesn’t cut it.

There is one key exception. For most employees in this situation, there is nothing within their employment contracts specifically allowing them to work from home. If, however, the contract specifically outlines that an employee is allowed to work remotely, then changing that employee’s workplace without the employee’s permission may be a breach of the contract, and may give rise to a legal claim from the employee.

Final Thoughts

We’ve been approached by countless employees in recent weeks and months who are trying to combat their employer’s mandated return to the office. There may be warranted exceptions, as there always are in law, such as for medical issues or disability. However, in most situations, the law comes down on the employer’s side on this one.

That is not to suggest that all employers should quickly revert to full-time mandatory office attendance. As employees have seen the benefits of working from home, there is no doubt that some of the best will want to remain in that position. Take a heavy hand with your policy, and you risk losing some of your top talent for an employer that allows work from most anywhere. 

At Mason Bennett Johncox we regularly help employers and employees throughout Durham Region navigate complex situations at all stages of the employment relationship. Contact us today to set up a consultation.