In the return-to-office push, employers that have been clear with their return policies will find better compliance from employees, says Janet Candido, founder and principal of Candido Consulting Group.
A slew of companies have announced plans to return staff to working in office on a full- or part-time basis, some with little advance notice. Despite more employers issuing return-to-office mandates, employees are still reluctant to return. Indeed, according to Benefits Canada‘s Future of Work Survey, more than two-thirds (69 per cent) of Canadian employers said it has been challenging implementing a hybrid work arrangement.
Candido notes that in cases where there isn’t clear communication and policies, some employees may have the right to resist based on their terms and conditions of employment. Employers that hired staff during the coronavirus pandemic — when social-distancing rules were in place that forced the organization to adopt remote-working policies — may have a more difficult time achieving compliance if they didn’t stipulate in those contracts that there would be an eventual return to the physical workplace.
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Jeff Bastien, lawyer and counsel at Dentons Canada LLP, says employees hired on the basis that they would be working remotely could view a return mandate as a change to the terms of their employment agreement if either party didn’t contractually agree to the employee transitioning to a specific work location other than their home at some point in the future.
This lack of clarity may make it more difficult for the employer to claim grounds for termination due to failure to comply with the mandate, he adds. “The employer may provide notice that this is going to be a requirement . . . and if [the employee doesn’t comply], then the employer can consider how to move forward from there.”
Bastien says cases in which employers didn’t have a physical office at the time of an employee’s hiring, but now expect that employee to physically report to an office, could be relevant to the reasonableness of the policy change.
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He says it’s important for employers to consider why they’re requiring the return to office and what they’re trying to achieve with the policy, so they can clearly communicate the goals to staff and provide sufficient notice of the change. He also suggests that where there are concerns with employees not complying with the policy, employers should communicate their concerns to those specific employees, both verbally and in writing. As well, it’s important for employers to engage in discussions regarding accommodations related to the policy, as some employees may face barriers to aspects of in-person work due to a disability or their family status.
However, there will be instances when employees who don’t have grounds for accommodations still refuse to comply with the mandate and the employer may choose to terminate their employment. In these cases, Bastien says it’s critical that employers consider how they’re going to part ways with the employee.
At the end of the day, an employer can decide how and where work is done in an organization and if they decide to move away from remote work, there are steps they can take to facilitate the return to the workplace, he says. This might include providing sufficient advance notice, or in some cases, even terminating the employment under those previous remote terms and offering new terms for in-person work, says Bastien. However, he cautions employers to seek advice before proceeding, to ensure such steps don’t create additional liability.
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