Can they be fired? Is it too late to change the contract? Can some people stay home?
These days, we’re hearing more and more about employees returning to the office.
But that transition might not go so smoothly if some staff are reluctant to leave their remote setup behind – even when the workplace is considered safe from a pandemic perspective.
So, what’s an employer to do? There are both legal and HR considerations, say two employment law experts.
It requires a careful, thoughtful and proactive approach, says Stephanie Henry, an associate at Bennett Jones in Calgary.
“Employers should sit down and consider: ‘What are our legal obligations? What does our business need and what makes sense for our office or for our organization?’ And then thoughtfully start thinking about how to actually implement it,” she says.
“Now that the work-from-home orders are being lifted, time is of the essence and we need to start thinking about what we want to do vis-a-vis employees coming back.”
One of the biggest questions being asked is whether employees can be fired for refusing to return to the office.
The simple answer is yes, says Puneet Tiwari, a lawyer at Levitt LLP in Toronto.
“Before the pandemic, your job was working from an office location; and now that the pandemic is over, you're being recalled, you must go back — unless some other deal has been made where your employer has said, ‘We are now a three-days-in-office, two-day-at-home work environment’ or you renegotiated a contract which states you can now work from home exclusively, or choose at your leisure the hybrid model.
“Unless one of those factors exists, and your employer calls you back, you must go back. If you do not go back, it’s job abandonment.”
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An unauthorized absence can be cause for termination, says Tiwari.
“Now, if it's one day or two days here and there, that's one thing; but if it's a permanent, unauthorized absence, that's cause for termination.”
It could also be considered resignation, he says
“You’ve got to show up to work. If you're not there, you quit.”
Many workers do not want to work in the workplace full-time, according to a survey released by Amazon Business Canada.
The question for the employer is: “Have I changed the employment contract in any way to somehow permit this person to work from home in definitely?” says Henry.
“And if the answer is no, and the terms and conditions of the employment relationship at the outset have been that the employee performed their services in person in the office, then it's reasonable to ask employees to come back to work, assuming the environment is safe.”
And if an employee straight up says they are not coming back to the office, then it’s possible that would be a repudiation of the employment contract, she says.
“If that's the case, then you can look to towards termination.”
While the process may be easier if the employer has already changed the employment contract with the remote work option, it’s not “strictly necessary,” says Henry.
“In the pandemic… [employers] were pivoting and coping with changing circumstances,” she says. “A written directive that it was just a temporary arrangement is not totally necessary; it's helpful, but it's not totally necessary, in order to ask people to come back to the office.”
But employers are going to have the easiest time through this transition if they have policies in place that communicated that work from home was a temporary situation, and as soon as the lockdowns are over, people will be brought back, says Tiwari.
“The ones who said nothing, they could be in trouble, because their employees possibly could now assume, ‘Hey, you know what, this is a permanent part of my job.’ If there was no communication in writing, that definitely is a risk those employers will face.”
However, when an employer terminates without cause, it’s difficult to raise reasons for the termination in a court of law, should the issue be litigated later on, he says.
“You won't be able to bring up their failure to come back to work unless you do a job abandonment or with-cause [termination], and as an employer, if you think you're doing an employee a favour — ‘I’ll terminate them but I don't want them to lose out on EI’ — that's fine, but you're opening yourself up to a lawsuit for wrongful dismissal and proper termination.”
More than eight in 10 (84 per cent) Canadian employers say they will consider some sort of permanent work-from-home policy, according to another survey.
If an employer really wants someone back at work, then it should communicate that they’re expected back by a certain date, says Henry.
“Outside of unionized contracts, I think that the strategy is to issue warning letters and give clear directives: ‘It's time to go back to work, failure to do so will amount to cause and we will terminate your relationship.’”
It’s also OK to negotiate a change to the employment relationship, such as working from home three days a week, or reducing compensation because they’re staying home, she says. “That's not discipline, that's a negotiation.”
It’s possible to inform employees that if they are allowed to work from home, they will no longer qualify for a certain type of bonus or their salary is slightly less, says Tiwari — as seen with Facebook.
“There's negotiating and bargaining power on both sides here.”
But simply talking to the employee is a good start, as many employers are faced with these kinds of refusals because of a lack of proper communication in the first place, he says.
“This is an opportunity for you to reach out and discuss with that employee: ‘Look, what do you want, what's your ideal scenario?’ And see if there's some kind of arrangement they can make. And that could be that employee signs a new contract, which allows them to work from home.”
Ideally, they sign a contract that has an enforceable termination provision, says Tiwari, “so when they're terminated later on down the line, that employer isn't also faced with the risk of a huge severance pay.”
While employers have a right to ask employees to do their jobs in a way that is efficient and maximizes their business objectives, they should also keep in mind morale — including the preference for a hybrid model, says Henry.
“That's something that you need to think about: ‘What do I need to do to keep my employees happy and attract and retain good talent?” she says.
“From an employee relations perspective, employers do need to think about that, but people don't have a right to work from home unless they have a contractual right to work from home.”
And while it’s important to be mindful that the pandemic has had an impact on people's mental health, asking them to come back to work and do their job is not necessarily showing that you don't care about their mental health, she says.
“It's just that many businesses function better having their employees in person.... They just need to be mindful also of attracting and keeping good talent. And sometimes that might mean, in this new world, having a hybrid model.”
But one word of caution: Some employers are allowing employees who have moved away to continue working from home, and that differential treatment could be problematic.
“It's creating animosity and tension in the workplace. So I think it's important that the employer think about fairness and think about reasonableness. And think about the impact on the work environment when different people have different options,” says Henry.
While legally it’s OK to make that kind of arrangement, where certain employees are still allowed to work from home, that will have an impact on other employees who might say, ‘No, I don't want to do this, I want the same deal Bob's getting, I want the deal Sally's getting,’” says Tiwari.
“It's just another bargaining chip that employees are going to have. And for a lot of employers, it's going to be like a bonus: ‘You get to work at home three days a week, because you're a superstar.’”
