This is not the first time we have commented on this issue as we did in one of our “Ask a Lawyer – Employment law“ segments on Toronto’s CP24 Program. The issue is whether an employee who was working from home during the COVID-19 quarantines is required to return to the workplace, as required by their employer.
There are few positive things to have resulted from the COVID-19 experience, but the ability of many employees to work remotely, with the advent of technology, is a distinct event. It became increasingly acceptable for people to work from home. Sharing a load of paternal care for working spouses became very prevalent throughout the pandemic. Employers found that in the right set of circumstances, their employees could even become more productive when they didn’t have to worry about chasing the clock for daycare and picking up their children from school. Then there is the absence of costs for daycare and reduced costs for clothes, travel and for lunches. Nirvana!
The seemingly glorious end of the epidemic has brought a cloudy side. There is an old adage – you can’t have your cake and eat it too. The reality is that some employers really do want their employees back in the office, and the pressure is on. Some genuinely feel that remote working erodes collegiality and collaboration, especially amongst older employees that were not brought up with Zoom. Then there is the dark side: there are employers who just feel they have the right to “oversee” their staff with a sneaking suspicion that they are ‘dogging it‘ when not under supervision.
We are one of Canada’s leading employment firms, and are not oblivious, nor impervious to this dynamic tension within the ranks of our own employees. Yet, the legal answer is quite simple, unless the remote working was introduced or incorporated as a permanent condition of employment, in the absence of a health risk, as yet undefined in the law, the employee must return to their place of full-time employment upon request from their employer. An exception is a working parent who by virtue of provincial employment standards legislation, must be returned to pre-pregnancy leave employment. For everyone else, it’s all hands on deck. Unfortunately, resistance could lead to an allegation of job abandonment, and cause for dismissal. No severance nor even regular benefit EI coverage would be afforded to those who refused to return to the office and consequently abandoned their positions.
However, to take a page from our own experience, employ coping strategies that promote working together with a valued employee as the sensible answer. Compromise to a flexible schedule that recognizes the needs of your employees. Invest in state-of-the-art team meeting technology and take the time for organized scheduled collaborative sessions. Initiate social activities between staff who feel alienated. Develop specific productions and goal plans for partially remote employees that would calm even the most cynical employer types.
Above all, avoid legal intervention, and stay away from heavy-handed ultimatums, and demands. Be Canadian – compromise. Why sacrifice all the employee/employer goodwill that developed during the pandemic. There you go! Was that hard?