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Howard Levitt: Return to the Office or Permanent Work-from-home? Whatever an Employer Chooses, Lawsuits Will Abound

posted 2 years ago

We have reached what could be employers’ last chance to return remote workers to the office. But employers risk constructive dismissal claims whether they call employees back or not, something most have yet to consider.

By the end of this month, most vaccine and mask mandates will have been abolished across Canada, along with capacity restrictions for shops, offices and events. Stadiums and concert halls will be filled, festivals will resume and long-awaited international travel will be enjoyed by many.

But, as Canadians return to normal life, anything that remains of COVID-19 restrictions risks becoming part of a new normal. This includes remote work, and any deviation from that new normal can constitute a constructive dismissal.

The question employers should be asking themselves is, “if not now, when?” If they cannot reliably answer that question and communicate the answer to their employees, then now is the time to call employees back, or obtain a signed agreement allowing them to do so later. They are at significant risk otherwise.

The decision to recall employees is a double-edged sword. While many businesses are attempting to navigate a return to the office, others are abandoning their leases and permanently transitioning to remote work. And that, too, can result in a constructive dismissal.

Many workers are looking forward to returning to their offices to fully engage in workplace culture and avoid the distractions of working remotely. To those, permanent remote working arrangements will not only be a disappointment, but also a contractual breach.

The longer an employee’s tenure, the greater their claim to being able to return to the office. As an example, a 20-year employee who worked at the office for all but the two years of the pandemic will have spent 90 per cent of their time working in-person and have a legal right to return to working in-person when the lockdowns and restrictions end.

This assessment becomes more difficult for employees hired just before or during the pandemic, as, depending on what they were told, they could have a more reasonable expectation of continuing remote work in the absence of any proclamations to the contrary.

Flowing from those contrasting expectations will be difficult and often irreconcilable quandaries for many employers in which they can neither reliably return everyone to the office nor reliably mandate everyone continue working from home. Lawsuits may abound from either choice.

There is less risk in the middle ground of calling employees back to the office but permitting some time working from home, but it does not do away with the risk entirely, and while the best chance of avoiding a constructive dismissal would be to provide the option of working onsite or remotely, allowing that election, in addition to being less productive, comes with its own challenges.

For example, employees with childcare or eldercare obligations might be more likely to elect to work from home, and any negative effects of that election, such as a reduced rate of promotion or lesser pay, could then be discriminatory.

However, these risks are accompanied by opportunity. Employees who would otherwise be called back to the office against their wishes may be keen to negotiate for the right to continued work from home, and that can be in the best interest of employers as well. While many employers are considering paying remote workers less or negotiating other terms, such as dismissal, layoff and discipline clauses in return for offering it, other employers are embracing remote working arrangements as a recruitment tool for employees who prioritize that opportunity.

Ultimately, employers must calculate both the risks and rewards whether they call employees back to the office or not.

BY HOWARD LEVITT AND MAXWELL RADWAY

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Maxwell Radway is a partner at Levitt Sheikh.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-return-to-the-office-or-permanent-work-from-home-whatever-an-employer-chooses-lawsuits-will-abound

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