This article originally appeared in the spring edition of HR Update. Read the full issue here.
Don’t get too comfortable; the days of working at home in one’s pajamas or sweats may be numbered. As COVID-19 vaccines become available to wider segments of the population, Canadians could soon be called back to the workplace by their employers.
One of the big questions being asked of lawyers these days is whether bosses can order workers back to the office as the public health risk of contracting COVID-19 fades away.
“The answer is, generally, yes,” says Joël Dubois, a law partner at Perley-Robertson, Hill & McDougall. “Fundamentally, the employer, subject to any prior deals they had with the employees when they hired them, can force them to work in the office.”
By law, employers are required to protect their employees’ public health and human rights, which means allowing employees who are able to work from home to continue to do so, to promote physical distancing and to safeguard themselves.
“When you’re in the middle of a pandemic, you’re kind of rolling with it as an employer,” says Dubois. “We know we have to all make sacrifices, including employers and businesses.
“But, at some point in time, as an employer, you kind of have a right to decide that you want to go back to your pre-pandemic way of doing things.”
Is this a fight worth having?
Fielding questions about COVID-19 return-to-work issues has almost “become an area of practice within our area of practice,” says J.D. Sharp, a partner at labour and employment law firm Emond Harnden.
“One of the problems for employers is that there isn’t a cookie-cutter solution and there’s so much grey area in any ‘duty to accommodate’ scenario,” he says.
There will come a time, said Sharp, when employers will be asking remote workers to return. This may come as welcomed news to employees who crave human contact, collaboration and connections while a small number may resist, whether their concerns are valid or not, he says.
“We see this typically in any workplace; 90 per cent of employees just want to show up and do their job and go home but then there’s 10 per cent who want to fight and be in opposition to what the employer wants.
“There are going to be these types of very narrow issues where the employer is going to have to decide, ‘Is this fight worth having? If this employee is working at home and they’re pretty much 95 per cent as efficient as they’ve been working in the office, do I want to spend thousands of dollars litigating?’
“I think that’s going to be the frictional stuff that we see when things start to open up a little bit more, when much more of the population is vaccinated, for example, and it’s safer to bring people back.”
Advice for employees
Jim Anstey, a lawyer in the employment law group at Nelligan Law, believes the most significant work-related disruptions have already occurred, when employers were laying off/terminating employees last March and April as Canada went into lockdown.
“It was a bit of chaos, but all the businesses I gave advice to seemed to figure it out and there hasn’t been a big upheaval, in terms of big court battles.
“Cooler heads prevailed, I’ll say, in terms of managing workforces and restructuring,” he says.
Anstey believes the eventual process of bringing remote workers back to the workplace will go smoothly.
“If I were to give advice to an employee resisting the employer’s direction to return to the office, I’d say that, unless you think there’s an elevated risk because of your workplace or you have a particular risk yourself because of a health issue, things are going to go back to normal at some point.
“It’s really a matter of ‘at what point in time is it reasonable to do so,’ not whether the employee thinks it’s a good time to go back. It’s ‘what a reasonable person would consider appropriate,’ subject to public health orders, of course. That’s what the courts look at.”