THE QUESTION
I am planning to bring employees back into the office full-time once it’s safe to do so. However, some of our team members moved to rural areas during the pandemic with the understanding that they could continue to work remotely. We also hired some new people outside of the province to tap better talent. I want to create a regional return-to-the-office mandate, but what are the rules around that? Could employees lie and say they moved away in order to continue working remotely? Could employees claim constructive dismissal if we hired them remotely then required them to work in-office?
THE FIRST ANSWER
Veronica Ukrainetz, principal and lawyer, Ukrainetz Workplace Law Group, Vernon, B.C.
This question has a fairly straightforward legal answer but poses far more complex human resource and operational issues.
A regional return-to-the-office mandate could be considered a fundamental change to terms and conditions of employment, at a level that is equivalent to an outright dismissal. Such a mandate could also result in a violation of an employee’s human rights if it impinges on any of the protected grounds listed in applicable human-rights legislation.
The legal exposure arising out of such a mandate can be minimized by providing appropriate working notice of the requirement to return to the office and accommodating (to the point of undue hardship) employees who provide valid human-rights-based reasons for needing to continue to work remotely. Appropriate working notice is met by either meeting the notice requirements set out in the termination of employment provisions of a legally binding employment contract, or where there is no employment contract, by providing notice in accordance with the common law. We strongly recommend obtaining legal advice from an employment lawyer to assess the appropriate notice period and evaluate any human-rights-related issues.
It is important to be mindful that the mandate may result in loss of employees, poor morale, increased incidence of absenteeism and so on. Given worker shortages, these issues cannot necessarily be addressed by hiring new talent. In addition, vaccination status becomes a bigger issue with in-office work. Pandemic conditions, and the introduction of new variants, may increase the risks associated with in-person interactions and may result in a “yo-yo” approach with employees making major changes to comply with the mandate and then finding themselves recommended or required to return to working remotely.
While employers may be able to minimize the legal exposure arising out of such a mandate, we encourage thoughtful consideration as to why such a mandate is crucial.
THE SECOND ANSWER
Laura Williams, founder and managing partner, Williams HR Law LLP, Markham, Ont.
Requiring employees to return to the office could lead to claims for constructive dismissal, particularly if an employee relocated or accepted a job from a distant location with an expectation that they could continue to work remotely. The level of risk is context-specific and depends on the reasonable expectations of the parties.
If an employer can demonstrate, through policies or otherwise, that its staff were aware that remote work was a temporary measure, employees will have a difficult time asserting constructive dismissal. In some industries, an eventual return-to-work may even be implied where the nature of the work is such that it can only be fully performed in-person. However, where an employee was hired out-of-province, or remotely, or relocated on the understanding that remote work was a long-term option, the constructive dismissal risk can be significant.
Providing advance notice of a return to the office in some cases can lessen the impact of potential constructive dismissal liability, and also provides employers with an opportunity to consider and address any pushback from staff. Note that employers may be required to accommodate employees under human-rights legislation where they are unable to return to the office for medical reasons or owing to child-care obligations. In any case, where an employee claims they are unable to return to the office, the employer is entitled to ask for evidence, and if an employer determines that an employee is being untruthful about their location or personal circumstances, this may be cause for discipline or even dismissal in some circumstances.
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