Given the current state of COVID-19 pandemic restrictions, employers are increasingly asking their employees to perform work in person, rather than remotely. As employers navigate these discussions with employees who have worked remotely for an extended period of time, they face yet another set of novel pandemic-related legal questions. It is essential for employers to think critically about when and how they can impose requirements regarding in-person work.
The Return to In-Person Work
Unless an employer has told its employees otherwise, an employer generally retains the right to change, modify or discontinue remote work arrangements at any time based on legitimate operational needs. While some employees may like to believe that the pandemic created a universal and indefinite entitlement to remote work, most remote work arrangements constitute an alternative temporary practice in response to the pandemic.
There are steps that employers can take to encourage cooperation with requests to return in person as well as to enhance the legal enforceability of these measures:
- provide sufficient advance notice of the return-to-work date
- implement a progressive return-to-work plan (e.g. start with two days in person, then progress to three or four days in person)
- subject to accommodations, apply the return-to-work measures in a consistent manner
If an employer is concerned that employees will not respond cooperatively to a request to return to in-person work, they may consider engaging in written correspondence outlining the temporary nature of remote work necessitated by the pandemic. If initial correspondence is ineffective, consider delivering follow-up written correspondence outlining specific expectations, expected date of compliance and consequences of a failure to comply. If follow-up correspondence is ineffective, an employer may be entitled to impose progressive discipline.
Employee Accommodation Requests
As employers encourage their employees to return to in-person work or increase their amount of in-person work, employers are frequently presented with accommodation requests. While the risks presented by the COVID-19 virus should form part of an employer's determination of whether to grant an accommodation request, the standard accommodation process otherwise remains largely unchanged. The same goes for an employee's duty to facilitate accommodation by providing the employer with relevant information regarding their needs.
Some accommodation requests will be related to an employee's disability. Employers have a right to medical documentation establishing the workplace restrictions and limitations caused by the disability. This medical documentation may establish a legitimate need to provide personal protective equipment, make alternative worksite arrangements to enhance physical distancing or permit continued remote work.
Employers should remember they may also have a duty to accommodate an employee on the basis of a family member who is immunocompromised.
When accommodation requests are related to an employee's family status needs such as childcare or eldercare obligations, employers are permitted to ask questions about the nature of the accommodation needs and whether alternatives to the requested accommodation have been explored:
- At what time and on which days of the week does the employee seek to be away from work?
- Are these family status obligations indefinite or are they expected to last only for a set period of time? (e.g. daycare availability, enrolment in school, availability of others to assist with family care needs)
- Are there special circumstances regarding the family member needing care that impact the accommodation request? (e.g. particular physical or cognitive needs of the family member, co-parenting arrangements)
- Is there a spouse or partner who is available to assist with these family status needs?
- Are there family, friends, neighbours, parents of classmates, or others who can assist with the family status needs?
- What is the availability of paid childcare and eldercare?
In summary, employers retain the right to mandate a return to in-person work as long as they do so in a reasonable manner and comply with their duty to accommodate. There are steps that employers can take to enforce compliance with in-person work requirements and employees are required to provide employers with certain information in order to gain entitlement to certain accommodations.
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.
