The Covid-19 pandemic unquestionably altered the way we view our workplaces.  The pandemic accelerated the trend of working remotely. A 2022 survey on the labour force conducted by Statistics Canada revealed that over a quarter of respondents had worked from home throughout the pandemic. Many employees in Canada prefer to work from home or at least hybrid work settings over traveling to the office daily.

However, as the pandemic subsides and health restrictions decrease, employers often refocus on getting people back to in-person work. Employees are left to wonder whether their employers can force them to end remote work.

This article outlines employee rights and responsibilities for returning to in-person office work.

What Legal Rights Do Employers Have To Change Your Work Location?

In general, employers have the right to determine where you work from and by what means as a part of your employment contract. However, this does not mean an employer can make significant changes without your consent to where you are working in all cases.

A written employment contract will provide an employee with the appropriate context about where the employee will be working. Even if there’s an option to work from home, employers may specify the geographic location. It can be as specific as a city or as broad as stating that the job requires you to work in Canada. Such an agreement may also expressly state that an employee’s geographic work location is subject to change.

Employers may have the flexibility to modify an employee’s job terms to meet business needs. The legality of changing an employee’s job location depends on how crucial it is to their work. Additionally, it may also depend on whether the job location was specified in their employment agreement.

Where you do not consent to an employer significantly changing your work location, it may result in a constructive dismissal of your employment. Therefore, entitling you to severance pay. For example, originally having the option to work from home anywhere in Canada versus going to an in-person office in a specific city.

If you don’t object to the change and follow your employer’s instructions, it will be harder to claim that you were constructively dismissed.  An employer’s changes that an employee does not raise issues with become part of the employment agreement.

Can You Refuse To Return To In-Person Work After Working from Home in Canada?

A company can only return employees to in-person work if they comply with all health and safety measures, as part of their obligations under the Ontario Occupational Health and Safety Act (“OHSA”). Your employer must follow all post-pandemic public health recommendations and workplace safety regulations. Employees have a right to refuse to return to an unsafe workplace.

Whether you can legally refuse to work in-person at an employer’s office will depend on your unique circumstances. If you have been working remotely for more than a year, you may be able to argue it became a fundamental term of your employment. Therefore, forcing you to return to work in-person at the office will amount to a fundamental breach of your employment agreement.

An employment contract will dictate how challenging it may be to refuse to work in-person. For example, if the contract contains an express term allowing an employer to dictate whether you work remotely or in-person at any given time. Before making any decision, review the contract and seek legal advice.

Exceptions to Employer’s Right to Demand Return to Work In-Person

There are some exceptions to the right of employers to demand in-person work setting. These exceptions are mostly limited to legitimate accommodation needs or concrete workplace health and safety concerns.

An employer must accommodate for:

• Legitimate health concerns to the point of undue hardship under the Ontario Human Rights Code ( “Code”).
  • If you can’t work in-person based on your doctor’s advice, your employer must assist with the necessary accommodation. In order to confirm your need for health-related accommodations, your employer can ask you to provide a medical note. Otherwise, the employee may have a Human Rights claim against the employer for discrimination on the basis of disability. 
• Childcare responsibilities
  • Your employer must make reasonable accommodations for you, within reason. Employees should let their employer know in writing if they need accommodations relating to their parental obligations promptly.
  • An employer must also accommodate you while you search for alternative childcare arrangements, or while you engage in other familial responsibilities. Otherwise, employees may have a Human Rights claim against the employer for discrimination on the basis of family status.

Forcing employees to return to work in-person at the office in the exceptional circumstances outlined above can result in civil claim for constructive dismissal. This will be processed through the Ontario Superior Court of Justice or a Human Rights claim through the Ontario Human Rights Tribunal.

Conclusion

In most cases, the employer has the right to specify where their employees must perform their duties. Many workers love the flexibility of working remotely and doing it productively. As a result, they might be hesitant to return to the office in-person

Workers can request to work remotely, but entitlement to refuse in-person office work depends on the unique circumstances. In some cases, an employer demanding an employee return to work may result in a constructive dismissal or Human Rights claim.

Are you are an employer or an employee dealing with a return to in-person work in the office? Consult with an employment and Human Rights lawyer. Employment lawyers can help you understand your entitlements, obligations and legal risks. There is no substitute for legal advice and advocacy tailored to your unique situation.

Related Topics

• What Happens If A Workplace Accommodation Is Insufficient For An Employee’s Disability?
• Constructive Dismissal Claims

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