Have you been ordered back to the office? Know your rights

With companies increasingly ordering remote and hybrid workers back to the office, employers and employees would be wise to review their rights and obligations, says Toronto employment lawyer Ellen Low.

“Recall to the office has become a hot-button issue,” she tells LegalMattersCanada.ca. “More and more people working in a hybrid or remote environment because of COVID-19 are now facing a new reality.

“There seems to be an implied notion among some employees that working remotely was going to be permanent,” adds Low, principal of Ellen Low & Co. “On the other side, employers are attempting to get people physically back into the office for a whole host of reasons.”

The issue of remote working can be polarizing, she says. The ADP Research Institute surveyed more than 32,000 workers from 17 countries last year and found 64 per cent would consider quitting their jobs if they were ordered back to the office full-time. More than half of those polled said they were prepared to make compromises, such as accepting a pay cut of up to 11 per cent, to continue a hybrid work approach.

Meanwhile, many business leaders have spoken out about the need for workers to be in the office.

‘There are political aspects to it’

“It an issue that certainly has plenty of nuances,” says Low. “There are political aspects to it and many different feelings including whether a hybrid environment even works at all. People have strong opinions about all of this.

“It was a big deal, for example, when Elon Musk announced last year that everybody at Tesla had to return to the workplace or get fired.”

In June 2022, Musk reportedly sent an email to employees stating, “Anyone who wishes to do remote work must be in the office for a minimum (and I mean *minimum*) of 40 hours per week or depart Tesla.” 

A second email read “If you don’t show up, we will assume you have resigned.”

A year after ride-share giant Lyft said it was “a fully flexible workplace” giving employees “the choice of where to live and where to work,” incoming CEO David Risher announced a “cultural reset” and ordered workers back to the office by September. 

The issue of whether employees are entitled to continue to work remotely after doing so for an extended period can be a grey area, says Low, “but there are certainly some things that we can consider.”

“First of all, was there ever any sort of signed agreement between the employer and the employee granting a remote or hybrid work environment?” she says. “It does not necessarily have to be a formal contract. It could be an email correspondence or their other discussions that were committed to writing.

“Is it an indefinite or fixed term or was the arrangement to be reassessed after a certain period of time?” Low adds. “If the contract specifically specifies it is a remote or hybrid position, then that agreement would rule the day.”

Issue can get murky

Where the issue can get murky is “where the original contract never contemplated any sort of hybrid or remote working situation but became necessary as a result of pandemic rules and other restrictions,” she says.

“Of course, as those restrictions were increasingly lifted across the board there were more organizations that wanted people physically back in the office,” says Low.

She says the length of time the arrangement has existed can come into play if there has been no attempt to change it.

“The longer that the employer is silent about the employee’s ability to work from home, the more chance it can become an implied term of the employment,” Low says.

Employers must also consider the Ontario Human Rights Code before unilaterally ordering someone back to the office, she says.

“That is one thing that sometimes gets overlooked,” Low explains. “If the company has someone who has been working remotely for child or eldercare obligations, or as a result of a pre-existing health or disability condition, and they continue to need to work from home, then that obviously still needs to be seriously considered.”

Could lead to constructive dismissal claim

She says ordering someone to return to the office could lead to a constructive dismissal claim if not handled properly.

“It comes down to the express contractual terms, and in the absence of those, the implied contractual terms which would help the court ascertain one way or the other,” Low says. “If there are any doubts about your rights, it is worth exploring the issue with a qualified expert in this field to determine whether being ordered to return to the workplace is a constructive dismissal.”

One mistake an employer could make is ordering a sudden return to the office, which could trigger lawsuits, she says.

“Best practice would be to consider the individual employees and determine their possible common-law notice period,” Low says. “What we are seeing are letters to employees that effectively take the position that the employer is going to give an enormous amount of lead time before any change. Following that lead time, it is expected that the employee will be in the office.

“That way, even if the employee tries to allege that the unilateral imposition of the return was a breach of contract, they will have been given plenty of notice,” she says.

Advance warning may protect employer

Under common law an employee who receives notice has an obligation to mitigate their damages by finding alternative work, so letting them know far in advance of changes to their job can protect an employer, says Low.

She says she has not seen much from the Ontario Superior Court with respect to forced returns “but perhaps the issue is still too new.”

“From a very practical perspective I do not expect many decisions because unemployment rates are low right now,” Low says. “If an employee receives the necessary advance warning that their employer is going to make a change, I would bet that they would be able to find a new position before the notice period expired.

“However, if an employee on the receiving end of a return to office notice has reservations about their situation, they may want to get some legal advice.”

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