With government mask and vaccination mandates being repealed or phased out in jurisdictions across Canada, many employers are probably considering how and when to best transition remote employees back to onsite working. Such a transition will be dependent on a number of factors specific to the individual employment relationship and workplace in question. Generally, however, if employers and employees are wondering whether employers have the right to force employees back into the office after remote working arrangements (in some cases for almost two years), the answer is “yes”: an employer typically has the right to determine where its employees work, subject to some of the following considerations.
Legal rights aside, employers ought to consider the impact of a return-to-work policy on employee job satisfaction and retention. With many employers introducing hybrid or remote work options, employers should consider their industry competitors to consider whether their policies are aligned with market comparables.
Occupational Health and Safety Considerations
Employers have an obligation to provide a safe and healthy working environment for their workers and clients. In Alberta, occupational health and safety (“OHS”) obligations are set out in the Occupational Health and Safety Act. Employers considering recalling their remotely working employees back to the office or onsite workplace will need to ensure such decision is consistent with meeting all of their OHS obligations. Employers who fail to meet their OHS obligations could be liable under OHS laws and under negligence for failing to meet their duty of care.
First, employers must ensure they are in compliance with all public health orders, including indoor masking and distancing requirements. Currently, under the Alberta Office of the Chief Medical Officer of Health (“CMOH”) Order 08-2022, mandatory work-from-home measures are still in place in this province (until Alberta enters Step 2 of lifting its public health measures) unless the employer has determined a physical presence is required for operational effectiveness. Alberta is lifting its public health measures in three stages, and will enter Step 2 as the Omicron wave subsides and pressure on the health-care system eases. Step 2 is scheduled to be in effect starting March 1, 2022 if hospitalization numbers continue to decrease. Employers who can’t demonstrate that a physical presence of their workers is required for operational effectiveness will need to wait until Step 2 is in force to recall employees back to the office.
Order 08-2022 is now in force in Alberta as of February 8, 2022, and requires that if employees are working on location, they must continue to mask in all indoor settings, except: while alone in work stations and separated by at least two metres distance from all other persons; if they are the subject of a workplace hazard assessment in which it is determined that the person’s safety will be at risk if the person wears a face mask while working; or they are separated from every other person by a physical barrier that prevents droplet transmission. More information on Alberta’s current public health actions, including in effect public health orders, can be found here.
As part of meeting their OHS obligations, employers will also want to set out clear guidelines or policies for their workers with respect to masking, distancing, and sanitizing (at a minimum). If a worker has legitimate concerns about the health and safety of a workplace, they have rights under OHS laws to refuse unsafe work.
Accommodation under Human Rights Laws
Employers considering a request by employees to continue remote working arrangements after they have recalled employees back to the office, will also need to review their obligations under human rights laws. Employers generally have a duty to accommodate employees on the basis of protected grounds (including family status) to the point of undue hardship.
Consulting an experienced employment and human rights lawyer is also crucial for employers in this regard to assist them in understanding their legal rights and obligations in accommodating employees under human rights law.
Contractual Terms of Employment
Another consideration for employers is whether employees have contractual terms of employment that allow them to work remotely. Note that this could also include a verbal agreement (oral contract) between an employer and employee that provides for such an arrangement.
Breaching a contractual term of employment could expose an employer to liability for constructive dismissal. Employers may also want to consider having employees sign updated employment contracts that address such issues as working remotely, their ability to recall employees back to the office, and COVID-19 related employment policies that they want employees to acknowledge. Employers considering such a step should be sure to consult with an employment lawyer to review the updated agreements in order to ensure all legal requirements are met and that they are valid.
Termination of Employees Who Refuse to Return to the Office
Employers who are considering terminating employees who refuse to return to the office, or placing them on leave without pay, will want to ensure that they are compliant with their legal obligations in this regard, including by providing adequate notice and the payment of severance, as applicable.
CARSCALLEN LLP’S EMPLOYMENT, LABOUR AND HUMAN RIGHTS EXPERTISE
Whether you are an employee or an employer, Carscallen’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee.
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If you are an employer or employee and have any question about recalling employees back to the office, or COVID-19 related workplace policies, please contact any member of our Employment, Labour and Human Rights team.*This update is intended for general information only on the subject matter and is not to be taken as legal advice.