Have your employees been working from home for so long that they have accrued a right to continue doing so? As is often the case in the world of Employment Law, it depends. But as time goes on, the risk grows.

Back in March and April of 2020, which seems like ages ago, most businesses scrambled to find ways to continue operating with their workers at home. This shift to remote work was entirely unexpected, unplanned, and seen by everyone as a temporary measure. Everyone expected things would return to normal, and the people who had always worked in an office would return to the office.

Of course, we naively thought that it would be a matter of weeks before things returned to normal. As a result, many people continued to operate as if the situation was temporary; laptops on dining room tables were seen as suitable offices for a short period.

Sadly, we are approaching the end of 2021 and the Omnicron variant has us – once again – imposing travel restrictions, limiting the size of gatherings, and predicting dramatic increases in both COVID-19 cases and hospitalization rates. Most businesses that have been able to allow employees to work remotely continue to do so; plans to bring people back either fully or partially have been pushed back over and over and over again.

Initially, working from home or remote work was an unexpected, short-term solution to an unanticipated and overwhelming problem: a global pandemic. It would have been ludicrous for an employee to claim constructive dismissal because their contract said they were to work in the office but they were being forced to work from home. Many people have now decided that they like working from home and don’t want to go back. Generally, we have said that the employee doesn’t have the right to make that decision unilaterally, but the longer they are allowed to remain at home, the greater the risk that they might.

Every employee has a contract. Some are written, and many are verbal. If there is nothing in writing, the terms of employment will be established by a combination of verbal discussions, terms implied by law, and past practice. For example, if someone receives a 5% bonus every year, at some point it becomes a term of their employment. Even if there is a written contract, it can be amended through the actions of the employers and the employees.

Constructive dismissal is a unilateral and substantial change to a fundamental term of the employment agreement/relationship. Examples will include changes in compensation, title, duties, and location of work. Of course, a significant change will still not be a constructive dismissal if the party imposing the change has the right to do so. For example, if a contract of employment says that the employer can change the location of work, then transferring someone from the Hamilton location to the Vaughan location is permissible.

So how does all this relate to the continuation of remote work? If an employee always worked in the office and was just sent home temporarily due to the impossibility of having them in the office, then the employer is perfectly within their rights to instruct them to return to the office. Employees do not have the right to choose where they work, unless they already had that right; for example, if their contract said they could work remotely some or all of the time, or if the existing practice was that they could. Otherwise, they can be required to return to the office, even if they are able to carry out their duties just as efficiently from home. That is the employer’s decision.

However, at some point, allowing employees to work from home when it is not mandated by the government may give rise to an argument that the parties have effectively changed the terms of the relationship. If the employee can establish that working remotely went from a necessary response to unanticipated circumstances to a choice, then they may be able to assert that the right to work from home has become a term of their contract, and the employer cannot unilaterally change it; to do so would be a constructive dismissal.

How do you avoid this? A simple way is to clearly communicate that remote work is only continuing as an interim measure because of COVID-19, and that the workers will be expected to return to the office at some point in the future. Ideally, the employees would sign off on this, but even without their written agreement, the clear communication should avoid a finding that the terms of the relationship have changed.

Without this clear communication, the longer employees are allowed to work from home, the more likely their right to do so will become entrenched.

These issues can be complicated, and we remind everyone not to make decisions without getting proper advice; fixing a problem is almost inevitably more expensive than preventing one. We work with employees and employers, so feel free to reach out to usreach out to us so one of our team can give you the advice you need.

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