QUESTION- CAN MY EMPLOYER DEMAND THAT I RETURN TO WORK IN PERSON AFTER MONTHS OF WORKING REMOTELY DURING THE COVID-19 HEALTH EMERGENCY?
When covid-19 took the world by storm in March 2020, society literally came to a total stand still. Social distancing became the norm, as did remote work. And given the long-term nature of the pandemic, most of us got used to working remotely full-time.
Now that the pandemic is receding from view, many employees are being told that they must return to the workplace, and that remote work arrangements are no longer possible. And given this sudden shift, many employees want to know, can an employer force them to work from the office after months of remote work? And as lawyers are so inclined to say, the answer is, “it depends.”
There are many factors to consider when answering this question, so let’s discuss each of these.
First, the type of work in question is most important in making this determination. Some jobs simply cannot be done remotely. For example, emergency room physicians, nurses, construction workers, transit workers, firefighters, police are among the many occupations that typically cannot be done remotely. If the nature of the work requires in person contact, it is totally reasonable for an employer to insist that you show up in person for work.
Second, the pandemic did reveal that many jobs that we thought couldn’t be done remotely indeed could be. Doctors and nurse practitioners were able to do many patient appointments by phone or web link, and professionals such as lawyers, accountants and financial planners were among those that could meet with their clients over the phone or zoom. Same for the courts, that were able to utilize technology to convene court proceedings as well as mediations.
Although there has been at least a partial return to in person meetings for the above functions, remote meetings have not gone away and are here to stay. Despite this, employees should not assume that they now have a full-fledged right and expectation to remote work, even if their job does not require them to be in person most of the time.
While covid-19 has changed the employment landscape, it did not change the overall nature of the employer-employee relationship, where an employee is guaranteed at the very least a minimum wage and statutory benefits, such as notice and vacation, as prescribed by the Employment Standards Act 2000. [“ESA”] In exchange, the employer does have a certain amount of control over the employee, in terms of hours worked, scheduling, and of course, place of work.
While remote work does allow for greater convenience by reducing transportation costs and meal expenses, it can present challenges for managers in being able to evaluate performance and ensure completion of job tasks. There is also a loss of collaborative teamwork when people are away from the office and zoom/web links only go so far. Employers still have the right to expect that performance metrics are met despite the increased prevalence of remote working arrangements. For these reasons, the physical workplace is far from irrelevant for most employees.
Employees can therefore expect the following to likely apply to their work situation:
- Hybrid work arrangements are increasingly becoming the norm, allowing employees to spend two or three days at the office, and the remainder of time working from home. This provides employees with greater flexibility while ensuring employers do not relinquish much of the control inherent to the employer-employee relationship.
- Employers are within their rights to track and/or monitor work performance via electronic software when employees are working remotely, i.e. to ensure employees are working the said hours, however employers must abide by the ESA and employees have a right to privacy.
- Employees with more seniority can expect greater flexibility with remote work arrangements, whereas entry level employees are more likely to be expected to work at the office.
- Employees can still expect to work exclusively in person where remote work is impractical (i.e. for emergency workers, firefighters, police officers, assembly line workers)
Many employees should be able to expect greater flexibility in their work arrangements, but they be unwise to conclude that there is an inherent right to remote work. An employment contract with clear and unambiguous provisions is the best way to ensure that both employers and employees alike are on the same page when it comes to remote work. Our next blog will explore the employment contract and appropriate remote work clauses, so stay tuned for more!