Happy with your home-office experience during the past year?
Don’t get too comfortable.
If your employer wants you back at the office, you may just have to comply.
“I think it’s going to be a mess,” said Scott Hawryliw, a litigation lawyer with Stewart Esten LLP. “There’s all kinds of problems here.”
The question of work location is likely to capture more attention as we near herd immunity, with more of us vaccinated and the risk of the spread of COVID-19 starts to subside, allowing employers to begin to try to get back to normal.
The ability to work from home, like other aspects of the working relationship, is a function of the individual’s employment contract.
But the pandemic was suddenly upon us, Hawryliw points out.
“I think in a lot of cases no one really stopped to put anything in writing as to what the terms of employment were regarding working from home,” he said.
The workplace and the law have undergone significant changes during the past 13 months, although it’s not necessarily all been hand-in-hand.
And with those changes — largely unanticipated — comes uncertainty.
“It’s something that we haven’t really gone through before and it’s something that has really changed the face of employment law, because the dynamics between employer and employee have changed as well,” said Josh Valler, an employment lawyer and litigator with Barriston Law in Barrie.
While some are itching to get away from the house and back into the workplace, many are happy to remain based in their home office with the commute eliminated.
But the lawyers suggest those employees shouldn’t be too comfortable unless they have something in writing.
Unless there is an issue preventing them from going to an on-site location, the employer has a right to call them back, said Nicole Simes. There is no legal obligation for the employer to allow the employee to continue working from home.
“There are many people bringing it up as an issue now, but also bringing it up as a future issue. ... They want confirmation that they’re going to be able to keep working from home for the indefinite future,” said the Toronto and Barrie employment lawyer. “It really has changed the discussion about remote work.
“Where it is an accommodation issue, so it is based on a disability, there is a lot of pressure, a very strong obligation on the employer to accommodate because of human rights law. So it’s that tension of: do they have to do it and what does that accommodation look like," Simes added.
Mental health issues — such as anxiety resulting from the pandemic — have been raised, as well as physical disabilities, as reasons that prevent some people from going back into the workplace.
There is also the question about the safety of the workplace given our experience during the past year.
A safe working environment now includes protective personal equipment (PPE) and safe distancing and may also include other safety measures specific to the pandemic.
Valler sees a possible issue with those who have relocated during the pandemic and the messaging they’ve been receiving from their employer.
Big cities across the world have seen an exodus of downtown dwellers as people realize they’re no longer bound by geography as they telecommute through the pandemic.
The result for Toronto has been an increase in condo vacancies and reduced rents in the core as the city dwellers decide to focus more on lifestyle, moving to area communities where they can find cheaper housing.
One of the major destinations for the Toronto exodus during the pandemic has been Barrie and Simcoe County. But now that many have arrived, does that mean they’re eventually destined to join that weekday commute every morning back to the big city?
“There’s assurances now being made by some employers saying to their employees: ‘Hey, you know what, we’re likely not going to call you back to the office any point in time in the near future or even after the pandemic’s done’," Valler said. "Based on that representation from the employer, perhaps the… employee wants to take advantage of less expensive housing rates and they move to other jurisdictions, but they’re still able to fulfill their role. What happens there?”
The best approach is for the employer to be transparent and communicate in the early stages about what they expect from employees after the pandemic, he said.
“That way you might avoid some of the pushback from some of the employees or some of the friction that could be caused once you do bring that decision,” Valler said. “You can avoid an unnecessary fight later on.”