Is remote work ending? Many of our employer clients are making plans for a return to in-person work. Likely many employees have mixed feelings about a return to the office. Sure, not wearing real pants has been nice, but many miss the in-person social aspects of work, and would maybe welcome a little bit of separation from their families, annoying cat, or their neighbour’s lawnmower. Today we will discuss some return-to-work issues.
Can I Require My Employees to Return to Work?
Employers can definitely tell their employees that they are required to return to the office. How strong a stance employers want to take on this will depend and some flexibility will likely be warranted.
After so many months of being required to work at home, some employees not wanting to return to the office may argue that working remotely has become a condition of their employment. The legal consequence of this argument would be that an employer could face a constructive dismissal claim by requiring an employee to come back to the office. A constructive dismissal claim can be made out when the employer unilaterally changes a fundamental term of the employee’s employment. Should an employee be successful in their constructive dismissal claim, the employer will owe them their termination entitlements.
In a worst-case scenario, the employer may lose valuable people and also have to pay out significant termination entitlements.
When making plans to return to the office, employers should be flexible. Maybe a full-time return isn’t necessary. Employers should also be mindful of employees who may require human rights accommodations to stay at home. In most cases, if employees have been successfully working remotely, continuing to do so will be a reasonable accommodation if there is a legitimate reason.
Employers should also plan well ahead and give employees as much notice as possible that the return to the office is coming.
COVID-19 Precautions For In-Person Work
One big question is whether employers can ask their employees if they are vaccinated in order to plan for a return to the office. Legal minds are divided on this question. Employers should consider whether there is a significant risk of infection if all employees are not vaccinated. Are the employees required to work in close contact with others? Are employees working with a vulnerable population? The higher the risk to the employees and to the public, the more likely it is that a requirement that employees be vaccinated to be at work will be reasonable.
Employers have a legal duty to provide a safe workplace. Not allowing unvaccinated people into the workplace could be a reasonable way to meet this duty in some contexts.
Currently, employers still need to conduct daily screening using the government screening tool found here and keep records of the results.
Employers also need to create COVID-19 Safety Plans. The Ontario guide for creating a COVID-19 plan can be found here.
Public health measures still need to be followed, which currently include capacity limits to allow social distancing and masking.
If you have questions about bringing your employees back to the office, get in touch for a consultation and stay tuned for the release of our new DIY Toolkit: OMG The Office Is Open!!! coming in August.