Work-from-home does not have to outlast the pandemic
COVID-19 did not start the work-from-home revolution, but it has certainly super-charged it. The early adopters were happy to reap the benefits of increased productivity and lower overhead, and some companies even declared that work-from-home was here for good.
Not everyone is sold, however.
CEOS of major corporations and Fortune 500 companies have firmly pushed back on the notion that work-from-home is a panacea that should last forever. Well over a year into the most wide-scale work-from-home experiment in history, there are many legitimate reasons why organizations will want to firmly establish where and how employees perform their work long after COVID-19 requires them to stay at home. How organizations establish these expectations will have profound legal implications going forward.
How much longer must employers allow work-from-home?
At a minimum, employers must continue to abide by government regulations and stay-at-home orders. In Ontario, where the stay-at-home Order has been extended until at least June 2, 2021, employers should continue to permit employees to work from home at least until then, to the extent that they are able.
As Canadians are increasingly vaccinated, we expect stay-at-home Orders will cease in due time, or at least become less stringent. That has been the experience in other countries ahead of us in the vaccination roll-out, such as the USA and the UK.
In the absence of any statutory requirement to keep workers at home, the decision of where employees perform their work comes down to the agreed-upon terms of the employment relationship. The terms of employment are a combination of the express terms in the employment contract, implied terms, and the parties’ course of conduct. If an employee worked from home prior to the pandemic, that is a condition of employment they should reasonably expect to continue. Demanding that such an employee report to a physical office would likely lay the grounds for a constructive dismissal claim. The same goes for employers like Shopify who expressly advised their employees that work-from-home was their new normal going forward; work-from-home has now become a term of employment for those employees.
If an employer clearly communicated to its employees that work-from-home was a temporary arrangement as a result of COVID-19, and those employees did not object, work-from-home has likely not become a term of their employment relationship. Those employees should expect to be recalled to the office.
If, however, an organization did not expressly state to employees that work-from-home was a temporary measure, or otherwise lead those employees to believe that work-from-home would continue past the pandemic, the situation is more complex. Those employees may have an argument that work-from-home has become a term of their employment. The strength of that argument will depend upon both the employees’ and employers’ conduct and their legitimate expectations under the circumstances.
How to recall employees back to the office
Organizations must carefully devise a return-to-work plan in accordance with government regulations and/or any bylaws limiting capacity in physical workspaces. Once a decision has been made to recall employees back to the office, it must be communicated clearly, along with the expectations going forward. If any remote work will be permitted, the scope, timing, and duration of such arrangements should be clearly outlined. The communication should also clearly confirm that work-from-home was a temporary measure, in accordance with government regulations, and no longer required.
Many employees have grown fond of work-from-home and do not wish to return to the office. Those employees may invoke the argument that work-from-home has become a term of their employment, and that recalling them amounts to a constructive dismissal. As such, organizations should quickly consider reviewing their return-to-work plans with employment law counsel to gauge the risks of recalling their workforce.
Where there is risk that an individual employee may be constructively dismissed, one strategy would be to provide the employee with notice of the intention to recall them back to the office, well in advance of the recall date. That way, even if the recall amounts to a constructive dismissal, the employee would have received a significant portion, if not the entirety of, their “notice period” with no further entitlements owing to them. This can effectively take the sail out of the winds of a constructive dismissal argument.
Once employees are recalled to the office, organizations must rigidly apply their back-to-work policies. If employees are permitted to continue to work from home, despite the formal recall notice, it will effectively become a term of employment, which risks rendering the recall notice meaningless.
Employers must also be mindful of the situations which engage human rights legislation. For example, if an employee requests to continue to work from home due to a disability, the organization is not absolved from considering that request in good faith just because there is no stay-at-home Order.
For Canadian businesses, it is now high time to consider and address recall to work plans. The lawyers at Hyde HR Law are happy to help.