Employment lawyer on remote work or being forced back to the officeTeam
In September of 2021, the Ontario Government reported that 29% of people aged 15 to 69 in Ontario worked at least half of their typical work hours from home. 29% is the highest number of any province in Canada. What exactly does this tell us about the future of remote work from home that was ushered in by COVID-19?
It means that remote work may be here to stay. For many employees who enjoy the benefits and balance that remote work brings to their life, this may be a blessing. For many employers who want to see a general return to in-person work, this may not be ideal.
As COVID-19 restrictions lessen and employers consider how to tackle return-to-work issues, it is a good idea to consider whether employees can and should be forced back into the office. This article will outline the legal rights and obligations of both the employer and employees, and give you tips for moving forward in an era of remote work.
Can an Employer Force an Employee Back Into the Office?
In general, employers do have a right to determine where and how their employees conduct their work, but this is often based on employment contracts and remote work agreements.
If an employment contract included an agreement about coming into an office space before COVID-19 restrictions hit, then that may be enforceable. In other cases, companies have instigated remote work contracts that detail terms of remote work. If there was nothing in the employment contract about work location and no remote work contract, then that’s where the legal issues truly begin to arise.
Employers may be able to argue that working in the office is an implied term of an employment contract. For a term to be implied, it must have been obviously assumed when the employer and employee entered into a relationship. For some employers, this might be the solution, but for employees hired for remote work in the midst of the pandemic and nothing in the contract speaks about returning to an office environment, the argument may not hold up.
If an employee does have a duty, implied or contractual, to return to in-person work and refuses, then the employer may be able to prove that the employee abandoned their job. If there was no duty for the employee to return, then being forced to return to in-person work or quit could be grounds for them to claim there was a constructive dismissal.
In general, employees have more rights than employers when it comes to issues surrounding employment.
What Rights do Employees Have to Stay Home?
For employees, answers will lie in both the Employment Standards Act (ESA) and their individual employment contracts. Employees should be careful to figure out whether they have a duty to return to the office based on their employment contract if they intend to request a more permanent remote or hybrid work situation.
Employers also owe their employees a duty to accommodate based on several factors, including disabilities and parental status. If you have a claim for why a disability could prevent you from returning to in-person work. Speak to your employer about what accommodations may be available. Including a possibility for long-term remote work. Similarly. If you are a parent whose children must continue to be at home for pandemic-related reasons. You may be able to seek accommodations to help you out.
One of the biggest things that the world has learned during. This pandemic is that working from home is a possibility. But as we start to imagine a world beyond the pandemic, what is the best way forward?
What is the Best Thing to Do?
One thing that employers should recognize is that more and more employees are finding that in-person work is a dealbreaker when looking for a job, or that employees will quit the jobs they have if forced to return to in-person work. While some employees are excited about the prospect of returning in person. Others have already left the province or the country altogether. We may never return to what the world looked like before COVID-19 hit.
If employers intend to encourage the return to in-person work. They should consider hybrid options or simply let their employees choose. Unless they want to avoid the hassle of potentially having to hire a new workforce.
Hybrid options are becoming more and more accessible through improving technology. Unless it is necessary to have employees onsite. It would be a good idea to investigate options to make the split workspaces function better.
As pandemic restrictions lessen, we are greeted with a new and ever-improving world of hybrid and remote workspaces. As things begin to open up. Employers must consider their plans to return to in-person work or continue with remote work.
In general, it would be prudent for employers to continue to offer options for remote and hybrid workstyles. Or to investigate their options when it comes to encouraging in-person attendance.
If you are an employer or employee with questions about a potential return to in-person work. Our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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