The end of the COVID-19 pandemic is in sight. Ontario has lifted many public health mandates and restrictions. Many Ontarians are resuming their pre-pandemic lives-including returning to work in-person.

Some have welcomed the transition from working-from-home to returning to the office, while others worry about the loss of the advantages of remote work. Remote work offers the possibility of a better work-life balance, flexibility for childcare, and the time and money saved on commuting. As such, many question whether employers have a right to demand continuing to work remotely, and whether employees may have a basis for refusal.

In most cases, employers do have the right to demand their employees return to the office, and employees, generally, do not have a right to refuse.1

However, this principle may not apply to all employment situations as there are a number of factors that must be considered to determine the rights and obligations of both parties to an employment agreement. These factors include the terms of the employment contract, human rights laws, and occupational and health regulations.

  1. Employment contract

Specific attention should be paid to the express and implied terms of the employment contract.

Express terms are those are the clearly outlined in the agreement itself. Examples might include the wage amount, or the starting date of employment. Implied terms are not expressly stated in the agreement, but are implied by law. Thus, implied terms will largely depend on the province in which the employment takes place. An example might be where the employment contract does not provide for a termination notice period, in which case, the minimum standards as set out in employment standards legislation, would be implied into the contract.2

If the employment contract expressly and unconditionally permits the employee to work from home, then the employer would not have the legal basis to require this employee to return to into-person work, and the employee, in turn, would have a legitimate ground to refuse this demand.

  1. Human Rights Laws

Human rights laws may also provide employees with a basis of refusal, but it must be on a prohibited ground of discrimination.3 In Ontario, the Human Right Code lists the following grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.4

Employers cannot force an employee to return to work, if it would be discriminatory to do so. For example, if an employee cannot return to in-person work due to a disability (which is a prohibited ground of discrimination), the employer has a duty to accommodate, and this accommodation may be allowing for continued remote employment.

  1. Occupational Health and Safety Regulations

Employers have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act (OHSA).5 By law, an employer must take every reasonable precaution to maintain a safe working environment.6 These steps include following any remaining COVID-19 public health guidance in good faith.

Employees generally have a right to refuse work which they have a "reasonable basis" to believe is unsafe or a danger to their health.7 This being said, the reasonableness of this belief is ultimately decided by a government inspector, who would be called to evaluate the working conditions should the employer and employee be unable to address and redress such concern before-hand, and on their own.8 The standard of review for such decision is that of correctness, and based on the conditions at the time the work was refused.9 The following situations are examples of unsafe working conditions granting a right to refuse work: driving a vehicle, which by certain characteristics, is not safe to operate;10 or failure to provide roofing employees with anchoring technique/guard in case of fall.11

Courts have not tested whether simply attending a physical workplace during a pandemic qualifies as an unsafe working condition. Arguably, a workplace could be unsafe where the employer does not follow public health official guidelines, mandates, or restrictions. However, this alone may not necessarily be sufficient to refuse to attend the workplace. Every situation and workplace is different.

It is important for employers to carefully strategize through their return-to-work plans and ensure they are aware of each and every one of their various obligations. It is also important for employees to be aware of their rights to refuse unsafe work - despite the uncertainty as to what that could mean during a global pandemic.

  1. Conclusion

Employers do have the right to demand their employees return to the office, and employees, generally, do not have a right to refuse. However, the employment contract, human rights legislation, and occupational health and safety regulations, each prove an added layer of complexity to that statement.

If an employment contract expressly and unconditionally permits the employee to work from home, then the employee would have a legitimate ground to refuse an employer demand to return to the workplace. Additionally, employers cannot force an employee to return to work, if it would be discriminatory and a violation of human rights to do so. Finally, employees have the right to refuse unsafe work - but there remains uncertainty as to what qualifies as an unsafe workplace during the pandemic.

"This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs."

Footnotes

1. Geoff Nixon, "Why your options may be limited if your employer wants you back in the workplace", CBC News, 4 July 2022, online: https://www.cbc.ca/news/business/canada-employers-wfh-office-return-1.6507545

2. Employment Standards Act, 2000, S.O. 2000, c. 41, ss 57-58.

3. Ontario, Human Rights Commission, COVID-19 and Ontario's Human Rights Code – Questions and Answers, (News Report), 18 March 2020, online: https://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers

4. RSO 1990, c H.19, s 2.

5. RSO 1990, c O.1 [OHSA].

6. Ibid, s 25(2)(h).

7. Ibid, at s. 43(3).

8. Government of Ontario, Part V: Right to refuse or to stop work where health and safety in danger retrieved from: https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger

9. Fletcher v Canada (Treasury Board – Solicitor General Correction Service), 2002 FCA 424.

10. Morey v CAT, 2022 ONSC 4621.

11. Ontario Ministry of Labour) v Vixman Construction Ltd, 2019 ONCJ 955.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.