Now that things appear to be returning to a level of normalcy since the pandemic started, some companies have opted to keep their operations remote or move to a “hybrid” model, while others are ordering their employees back into the office full time. The question now arises, can the employees fight the return to office policies?
If the employment agreement specifies an expectation or entitlement to remote work, then the case for the employee is strong. It weighs against the employee though if the agreement sets out an expectation to work in the office. Even without a written contract, the default expectation is generally working in the office.
However, the longer employees have been working remotely and continue to do so, the stronger the case becomes that the right to work remotely has become a material term of the employment agreement. Thus, enforcing the return to office policies and unilaterally changing this material term could lead to successful claims for constructive dismissal.
Employers should note that they must accommodate employees’ obligations and conditions to the point of undue hardship. This often manifests as medical issues and responsibilities for children. If the company has successfully operated remotely since the pandemic started, it weakens the argument that allowing some remote work would cause undue hardship to the company. Failing to accommodate could lead to a wrongful dismissal or human rights damages.
If the issue becomes irreconcilable, then it might be best for the employee and employer to part ways. Rather than terminating for cause, it is likely best for the employer to terminate without cause and provide a severance package. The bar for just cause is a high one. On the other hand, any employee being terminated for cause or receiving a severance package should seek independent legal advice about their situation.
Whether you’re an employer concerned over pushback to your return to office policies or an employee wondering what your options are, you should reach out to Whitten & Lublin Employment Lawyers to speak with an experienced employment lawyer online or by phone at (416) 640-2667 today.
Author: Sohrab Naderi