Many employees have grown accustomed to working from home during the COVID 19 pandemic. For many, the thought of returning to the office seems daunting or even impossible. As employers set about bringing work back to the office, many employees have been seeking advice from our employment lawyers on their rights to continue working from home. Does your employer have the right to bring you back to the office after so much time has passed? Does this violate your employment rights?
The short answer – yes, your employer can force you to return to the office.
It’s an answer that you’re probably not going to like. Your employer generally has the right to determine where you perform your work. If a fundamental disagreement arises, your employer may also terminate your employment, subject to specific statutory protections. For most workers, this will be the end of the story.
However, all legal matters come down to the details, and there are many situations in which you may have certain legal rights to refuse to return to the office. Our employment law firm has the answers you are looking for.
Scenario #1 – You have a contractual right (express or implied) to work from home
While most of the recent work from home trend came as a response to the COVID 19 pandemic, the connection between the two has become more tenuous with the passage of time. Some workplaces have signalled a permanent work-from-home or hybrid arrangement; others have allowed employees to relocate far away from the office; and many have simply said nothing about plans to return to the office.
Depending on what your employer has communicated to you about the future of your work-from-home arrangement, you may have an argument that work-from-home has become a fundamental term of your employment. That means that if your employer wants to change this fundamental term and force you back to the office, you may be entitled to reasonable notice of that change. If notice is not given, an employment lawyer can help you sue your employer for wrongful dismissal.
Scenario #2 – You require accommodation under the Human Rights Code
Every Canadian employee is protected by human rights legislation, which prohibits employers from discriminating against employees on matters like age, ethnicity, sex, disability, family status, and many other protected grounds. Human rights legislation also requires that employers accommodate employees’ restrictions related to protected grounds, unless doing so would be unduly costly, impractical, or unsafe.
For instance, the duty to accommodate may support your request to continue working from home if you have a disability that makes it difficult or unsafe for you to attend the office, or if you are unable to secure care for your children.
Employees should take note, however, that general fear of COVID 19 is not a reasonable basis to request accommodation. Furthermore, if your restrictions may be accommodated by some other method than work-from-home, your employer gets final say on which accommodation is most suitable. If you are in a dispute with your employer over a request for accommodation, it would be a good idea to speak with an employment lawyer during a free consultation.
Scenario #3 – Your employer is not providing a safe workplace
Employers have a general obligation to protect the health and safety of all workers. COVID 19 is no different – governments across the country have issued detailed and specific public health guidelines which workplaces must follow. If your employer is not following these guidelines and not providing a safe workplace, then you may have the right to refuse to attend the office.
However, work refusals due to COVID 19, for the most part, have been denied. In Ontario, for instance, the Ministry of Labour denied 277 of 278 reported work refusals in the first few months of the pandemic in 2020. General concern related to COVID 19 is generally not a reasonable basis to refuse to attend work on health and safety grounds.
If you have health and safety concerns relating to returning to the office, you should feel free to raise those concerns with your employer, as most employers are prohibited from retaliating against or disciplining employees for doing so. That said, outright work refusal should be considered a last resort, and generally should not be done without legal advice.
If you are dealing with an employment issue such as wrongful dismissal, unfair severance, or workplace harassment, contact the employment lawyers at Share Lawyers. Our 35+ years of experience in long term disability (LTD) law and team of experienced employment lawyers can help you win your case against your employer. We offer free consultations and there are no fees unless you win your case. Join us on Facebook and become a Top Fan for a chance to win each month.