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With Lockdowns Set to Lift, Employers Need to Recall their Workers to the Office – Before it's Too Late

posted 2 years ago

Another year, another lockdown. People back to working from home, restaurants closed again. But this time, finally, an end in sight.

We wrote on this topic in October, when we cautioned that permitting employees to work from home longer than legally necessary risked making that a permanent term of their employment. In such a scenario, an employee who was later forced back to the office could claim the move amounted to a constructive dismissal, refuse to attend and sue for wrongful dismissal if the employer did not back down.

That was two lockdowns and two waves of COVID ago. The news that the latest lockdown is coming to an end makes it now opportune for employers to advise employees that they are required to return to work.

Some tips to remember are:

1. The time to recall employees to the office is limited . The sooner employers act, the less likely an employee can claim constructive dismissal. If employers act quickly enough and employees refuse to return to the office, they have abandoned their employment.

2. Employers should document these communications: a phone call is not sufficient protection.

3. And finally, if remote work is the new norm, employers should offer new contracts that include work-from-home rules . Employers legally have a choice of offering employees their jobs back at the office at their existing remuneration but offering a lesser amount if they prefer to work from home. With a shortage of workers though, that may not be practical.

Many employers will fail to address these issues and 2022 may just become the year of “return-to-work” constructive dismissal claims, just as 2020 was with COVID-19 layoffs and 2021 with vaccine mandates. As with those other claims, the employer’s timing and proper documentation will play a key role in deciding whether employees will receive an award of damages. Employers should not view the Jan. 20 announcement as just another false alarm, but rather, they take Premier Ford at his word and act accordingly.

Many employers who failed to properly handle temporary layoffs and vaccine policies have spent a considerable amount in damages and legal fees over the past two years.

Employment lawyers have moved from niche practitioners to some of the most in-demand legal specialists due to these kinds of policy errors by employers. Some employee-side law firms have even instituted bonuses based on the number of claims filed by associates each month. At our firm, when acting for employers, we are receiving fewer demand letters. Instead, employer clients are being served statements of claim without warning. Many of these claims could have been avoided.

It is never too late to get your business’s documents up to date and in order. Drafting contracts that will survive judicial scrutiny is the first step.

With so much uncertainty regarding the COVID-19 pandemic, employers are well-advised to determine now their intentions as to which employees will be permanently granted work-from-home status and to provide instructions and documentation accordingly.

And to be clear: It is the employer’s right to decide which employees that will be – provided they act quickly.

BY HOWARD LEVITT AND PUNEET TIWARI
 
Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada. Puneet Tiwari is with Levitt Sheikh.
 
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/with-lockdowns-set-to-lift-employers-need-to-recall-their-workers-to-the-office-before-its-too-late

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