How common is remote work in Canada today?
A recent report from the Gensler Research Institute showed that Canada is among the countries with the most employees working from home. For many employees, particularly since the remote work arrangements of the COVID-19 pandemic, this has been a welcome change to their employment arrangements.
Can your employer force you to return to the office?
The flexibility and time savings offered by remote work is often a boon for work-life balance. This is contrasted with a trend among some employers, both in Canada and globally, of eliminating or reducing the amount of work from home. Employers often justify the reason for return to office as increasing work productivity and fostering a better and more connected office culture. But what are your ‘rights’ to remote work, if any?
The first step is to examine the terms of your employment agreement. Where a contract specifies that it can choose where an employee works, then it is difficult to argue for any ‘right’ to remote work.
The best-case scenario is where the contract does lay out a right to remote work. Removing that right could be seen as a change to a fundamental term of the employment agreement. Employers can only do that if: 1) they provide consideration, like a signing bonus, for the change which the employee chooses to accept; or 2) if they provide reasonable notice of the change, which would give the employee a chance to search for other work if they do not wish to accept the change.
Reasonable notice varies for each employee based on factors like age, position, tenure, and salary, but can reach upwards of 24 months at the higher end. Thus, if an employee’s reasonable notice is 3 months based on the factors listed above, if they did not want to return to office, they should be given at least 3 months to find other work or beoffered a comparable severance package in place of the reasonable notice. An expert employment lawyer can help you determine what your reasonable notice period would be.
If an employer does not do one of the above, then forcibly ending an employee’s remote work arrangement could constitute a constructive dismissal, leading to potential entitlement to a severance package even in the case of resignation.
It’s a bit murkier when a contract is silent on this. There, it can depend on how long an employer has allowed an employee to work remotely. The more time passes, the more it becomes a fundamental term of the employment agreement. At some point, removing the remote work could be construed as a unilateral change to a fundamental term of the agreement, which can provide a potential constructive dismissal claim.
If an employee was induced to leave previously secure employment on the basis of permanent remote work, that gives further ammunition for a constructive dismissal claim.
Can taking away remote work be discrimination under human rights laws?
The right to remote work can even touch upon human rights arguments. If an employee relies on the remote nature of their work to take care of children or other dependents, taking that away might be discrimination based on family status. Employers must accommodate to the point of undue hardship, so if they cannot prove the necessity of removing remote work, they could well be held liable for human rights violations. Infringing the Canadian Human Rights Act or the Ontario Human Rights Code can lead to general, non-taxable damages being awarded, and potentially also supporting a constructive dismissal claim to get a severance package.
Though Canada is at the forefront of the remote work revolution, trends are always subject to change. You may find your workplace reversing course and ordering all employees back to office. An experienced employment lawyer can help you determine whether you have a right to remote work. If you are wondering what your potential recourse is against a return-to-office mandate, please contact Whitten & Lublin online or by phone at (416) 640-2667 today.
Author – Sohrab Naderi
