Return-to-Office Mandates: Considerations For Employers And Employees

With news of large Ontario employers, such as banks and financial services firms, imposing sweeping return-to-office mandates to take effect this year, the legal implications of such policy changes have been top of mind for employers and employees in Ontario. This blog post summarizes some recent court and tribunal decisions and discusses their implications for employers considering returning workers to the office, and employees faced with changes to remote or hybrid working arrangements.

Constructive Dismissal

An employee is constructively dismissed when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee (Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10).

If an employee's contract specifies that remote or hybrid working arrangements are temporary and clearly grants the employer the right to direct the employee to work in person, it is likely that a return to office mandate in accordance with that contractual term will not be considered a constructive dismissal.

On the other hand, remote or hybrid work may have become a fundamental term of the employee's contract which may not be changed without notice or the employee's consent. An employee who was expressly hired to work remotely during the COVID-19 pandemic, or an employee who was permitted to work remotely during the pandemic and whose contract does not specify that remote work was temporary, may have a claim for constructive dismissal.

In Byrd v. Welcome Home Children's Residence Inc. (Small Claims Court File No. SC-22-00162197), a 2024 decision of the Ontario Small Claims Court, the Court found that an employer's attempt to recall a worker who had been permitted to work remotely was a constructive dismissal. The Plaintiff employee worked as a manager of clinic support and services with the Defendant, a children's care home, since April 2018. She did not have a written contract of employment.

In May 2020, the employee's husband was posted to Belgium by the Canadian Armed Forces. It was agreed that the employee would work remotely from Belgium during her husband's three-year deployment and that her pay would remain unchanged. This agreement was not reduced to writing. The employer admitted that the employee was not warned that her hours of work could be changed during the period of remote work, or that she could be recalled to Canada if it was determined that the arrangement was no longer working to the employer's satisfaction.

The employee worked remotely from Belgium without issue from the summer of 2020 until October 2021, when the employer told the employee that her position would change and that a new on-site manager would be hired. On January 7, 2022, the employee was told not to work more than 15 hours per week without approval, and on January 26, 2022, was stripped of most of her job responsibilities. The employer's counsel took the position in March 2022 that the employee's remote work arrangement was not permanent, and the employee was therefore being recalled to work in person, stating:

Deputy Judge C. Kelly determined that based on the parties' conduct and evidence of their oral agreement, remote work from Europe had become a key term of the contract. When the employer unilaterally reduced the employee's hours, took away her responsibilities, and ordered her to return to the workplace, she was constructively dismissed. The employee was awarded damages based on a notice period of 6.5 months.

A similar result was reached by the Alberta Court of King's Bench in Nickles v 628810 Alberta Ltd., 2025 ABKB 212. In that case, the employee, an office manager at a clinic, began work in 1986, long before COVID-19. Throughout her employment, she mostly worked from home but attended the office when needed. The employer then gave the employee three months' notice to "return" to the office full time. This unilateral change to her longstanding remote work arrangement was a constructive dismissal.

Justice Farrington found that Nickles was constructively dismissed, but reasoned:

The employer also took the position that if the employee was constructively dismissed, she was required to accept the employer's proposal that she work in the office 2.5 days per week to mitigate her damages. Justice Farrington found that the employee was not required to accept the offer, satisfied that a "reasonable bystander" would not expect her to accept the offer.

Human Rights and the Duty to Accommodate

Another factor to consider when implementing a return-to-office policy is the effect of such a policy on employees with needs pursuant to the Ontario Human Rights Code.

At law, an employer has a duty not to discriminate on the basis of enumerated grounds under the Code, which duty includes a requirement that any work requirement, qualification, or factor is reasonable and bona fide, and that an employee's needs cannot be accommodated without undue hardship. Practically speaking, this means that an employer must accommodate an employee's Code-related needs up to the point of undue hardship. Both the employer and employee have a duty to participate in the accommodation process in good faith.

Imposing a return-to-office policy without accommodating employees who require accommodation on the basis of grounds such as disability or family status may be discriminatory. For instance, immunocompromised employees who cannot safely work in person, or employees with particular childcare responsibilities who cannot commute to the office, may have a claim for discrimination.

In Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81 ("Flynn"), a recent decision of the British Columbia Human Rights Tribunal, an immunocompromised employee who was uncomfortable with his employer's in-office work requirements during the height of the COVID-19 pandemic was found to have been discriminated against by the employer who failed to accommodate his disability.

The employee was immunocompromised due to medication required to manage arthritis. On March 13, 2020, the employee accepted an offer of employment as a project lead and architect, with a start date of March 30, 2020. The employer insisted that the employee come into the office for his first day of work and imposed a schedule requiring the employee to work one to two days per week in person with three other employees. Between March 16 and March 30, the employee advised a supervisor several times that he was immunocompromised and that he was concerned about the in-person schedule. The employee gave evidence that the other employees were not observing social distancing protocols when he attended the office in person.

On April 2, 2020, the employee was told that a new schedule required him in the office three days per week. He again raised concerns regarding exposure to COVID-19 in the office and asked that the employer consider other options. The employer insisted that the employee follow the in-person schedule. The employee resigned on the same day.

The Tribunal first concluded that the employee had a disability within the meaning of the Code. The parties agreed that the in-office policy had a purpose rationally connected to the performance of the employee's job and was adopted in an honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose. However, the employer failed in its duty to accommodate the employee.

The employer argued that the employee was required to provide details of a specific medical condition or request a specific accommodation before it was required to take steps to accommodate him. The Tribunal rejected this argument, reasoning that once the employee brought forward the fact that he was immunocompromised and that same caused him concerns about working in the office, the employer was bound to initiate the accommodation process, including requesting information from the employee regarding his needs and proposing solutions.

Employers should be aware that refusing to engage in the accommodation process can have significant consequences. The employee in Flynn was awarded $183,802.59 for lost wages and $25,000 in compensation for injury to dignity, feelings, and self-respect.

On the other hand, not all changes to an employee's established remote work arrangement will constitute discrimination pursuant to Human Rights statutes. In Tarek-Kaminker v. Canada (Attorney General), 2023 FCA 135 ("Tarek-Kaminker"), for instance, the Federal Court of Appeal upheld a decision of the Federal Public Service Labour Relations and Employment Board denying a grievance brought by an employee whose longstanding telework arrangement was terminated by her employer.

In Tarek-Kaminker, the employee was a prosecutor and for many years had benefitted from an arrangement permitting her to work from home two days per week. In 2016, the employer determined that the arrangement was no longer feasible and advised her that the arrangement would not be renewed. The employee was an observant Jewish woman with childcare responsibilities and took the position that the telework arrangement was necessary to fulfil her religious and caregiving obligations. The employee claimed that by not renewing her telework arrangement, her employer had discriminated against her by refusing to accommodate her religious beliefs and family status.

The Board denied the grievance and found that the employee had not met the test to establish prima facie discrimination on the basis of a protected ground. This denial was based primarily on the employee's failure to adduce satisfactory evidence that she had made reasonable efforts to meet her legal childcare obligations through reasonable alternatives or that no alternative solutions were readily available, and the employee's failure to provide her employer with sufficient detail to understand her childcare needs and how they could be accommodated. As well, the Federal Court of Appeal held that the employee had provided insufficient evidence that the employer's specific action in denying her telework arrangement had adversely affected her childcare responsibilities or her religious practices. The Court also noted that accommodation need not be perfect to be legally defensible. In Tarek-Kaminker, for instance, the employer had offered the employee reasonable accommodation of her religious needs by allowing her flexibility on Friday afternoons, when possible.

This decision, while made outside of the context of COVID-19 era arrangements, highlights that although a return-to-office policy may have some negative effect on employees with caregiving responsibilities, mere conflict between those responsibilities and an employer's rules will not be enough to establish discrimination.

Takeaways for employers:

• Ensure that new employment contracts specify that any remote or hybrid working arrangements are temporary and are subject to change by the employer, and reserve the right to require in-person attendance.
• Consider revising existing contracts and workplace policies to reserve the right to revise remote or hybrid work arrangements, but be aware that modifications to existing employment contracts require fresh consideration (a benefit to the employee, such as a raise, bonus, or increased vacation entitlement, for instance) to be enforceable. Consult an employment lawyer before making changes to existing contracts.
• Provide ample notice of return-to-office policies or other changes to working arrangements to attenuate the risk of a constructive dismissal claim and allow employees to make appropriate arrangements.
• Take seriously all requests for accommodation that engage Human Rights Code grounds, such as disability and family status, and ensure that the employer complies with both the procedural and substantive components of the duty to accommodate up to the point of undue hardship. Engage in good faith to obtain information regarding the employee's accommodation needs and work to find an accommodation, recognizing that flexibility and compromise may be necessary.

Takeaways for employees:

• Not all requests to return to work constitute constructive dismissal. A traditional "return-to-office" policy for an employee who worked in-person prior to the COVID-19 pandemic may be legally permissible.
• Review your employment contract carefully for terms regarding hybrid working arrangements and the location of work.
• Document all requests for accommodation on Code grounds in writing.
• Engage in the accommodation process in good faith: Provide sufficient information to the employer regarding your Code-related needs so that the employer can participate in accommodating your needs. An accommodation does not need to be perfect, but it must be reasonable (Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970). If the employer's proposed accommodation will not work, explain why and propose an alternative.
• Be aware that refusing to return to work in person without first requesting accommodation based on disability or family status, or without consulting an employment lawyer regarding a constructive dismissal claim, could be considered job abandonment/resignation or "quitting," or insubordination justifying termination for cause. Both job abandonment and termination for cause can affect entitlements to compensation for wrongful dismissal and entitlement to employment insurance benefits. Consult an employment lawyer for advice before refusing to return to the office or resigning.

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.