As Governments loosen COVID-19 restrictions and implement reopening measures, many employers are considering having their employees return to work in person. This shift is raising questions about whether employers are able to require employees to return to their workplaces.
The short answer? Employers do have the ability to dictate where employees complete their work. The following tips will help employers ensure a smooth transition to an in-person workplace.
Tip 1: Provide employees with notice.
Many employees have been working from home for well over a year. For these individuals, and their workplaces, it has become the new norm. An employer who unilaterally requires an employee to return to the workplace is at risk of the employee filing a constructive dismissal complaint.
A unilateral requirement to return to work will not amount to a constructive dismissal where the employer provides the employee with reasonable notice of the change. Employers should calculate the amount of notice required using the same considerations when effecting a termination of employment; age, position, length of service and likelihood of finding comparable alternate employment. Employers should provide reasonable advance notice before requiring employees to return to the workplace.
Tip 2: Accommodate, if required.
Employers must accommodate employees who refuse to return based on a ground protected by human rights legislation to the point of undue hardship. Such requests for accommodation generally involve health reasons and family obligations.
What constitutes undue hardship is highly contextual and depends on factors such as the cost of the accommodation and the impossibility of implementing the employee's accommodation request.
Employers must consider each request for accommodation, consider whether accommodation is necessary, and what type of accommodation can be reasonably provided without facing undue hardship. Employers may request additional information in order to assess their duty to accommodate.
Tip 3: Ensure that the workplace is safe.
If an employee believes that the work is dangerous, they may refuse to work until the danger is eliminated. Employers may provide alternate work to the employee in the interim. Employers should ensure that they are in compliance with all public health guidance regarding COVID-19 to avoid such complaints.
Even where there are no accommodation or health and safety issues, an employee may still decide to refuse to return to the workplace. Recent surveys show that many employees are hesitant to return to the workplace and are considering resigning if they are not provided the flexibility of staying at home. Stay tuned for our next blog on employee resignations and the amount of notice employees are required to provide if they resign.
Employers need to be aware of their legal obligation when returning employees back to in-person work. Our labour and employment team has experience advising on notice requirements, the duty to accommodate, as well as health and safety measures and policies in the workplace.
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.
