Back to the Office, Back to Reality – Part 1

But I Don’t Wanna Go! Rights and Responsibilities Surrounding a Return to In-Person Work

By of Merovitz Potechin LLP on Thursday March 31, 2022.

Can my employer force me to return to the office?

Generally speaking, yes. 

This will depend on the terms of your employment contract (whether written or oral).

For employees that had a pre-existing right to work from home, an attempt to change that may amount to constructive dismissal.

Before the pandemic, the Ontario Superior Court of Justice released its decision in Hagholm v. Coreio Inc., 2017. In that case, Ms. Hagholm began working full-time for her employer on the understanding that she could work from home three days per week. Following an ownership change, the employer attempted to force Ms. Hagholm to work five days a week at the office. The Court found that there was an oral agreement which permitted to the Plaintiff to work from home 60% of the time. By refusing to honour that agreement, the employer had effectively fired (constructively dismissed) Ms. Hagholm.

Where remote work was not part of an employee’s existing contract before the pandemic, that employee likely must return to work, subject to the employer’s duty to accommodate.

I was hired during the pandemic

Whether an employee hired to work remotely during the pandemic must return to the office may depend on the terms of their employment contract. If it was not made clear at the time of hiring that remote work was temporary, the employee might be able to claim they had an agreement to work from home, similar to Ms. Hagholm.

My child is sick and cannot pass the required screening for their childcare provider

An employee who has caregiving responsibilities has a right to be accommodated to the point of undue hardship. In the right circumstances, this might include a right to work from home to care for a sick child.

If an employer has accommodated this need for the past two years, it may be difficult for it to now claim it causes undue hardship.

How do we navigate all of these issues?

We strongly recommend that both employers and employees consider being flexible where feasible. 

For example, if an employee is required to self-isolate, employers should consider whether there are options for that employee to remain productive at home. Employers should also consider special circumstances such as an employee’s medical condition, or family status.

Likewise, employees should consider the impact of their behaviour on their co-workers. We encourage employees to continue staying home when self-isolation is appropriate, and to make use of other measures to protect their co-workers (for example masking, and regular handwashing) should they be well enough to pass the applicable screening, but still symptomatic.

Does this mean I have to wear a mask at work?

Read Part 2 of our Back to the Office series where we discuss the rules governing mask mandates in the workplace.

If you have any questions about rights and responsibilities surrounding returning to in-person work or questions about employment contracts and constructive dismissal, contact the Employment Law Lawyers at Merovitz Potechin LLP.