By Weinan Wang

As Ontario’s COVID-19 case numbers drop, many employers are considering calling their employees back to the office and eliminating working from home. It begs the question of whether employers should give advance notice to their employees, and if so, how much notice they should give.

To answer this question, employers should first consider whether ending working from home is a fundamental change to employee employment contracts. If it is a fundamental change to existing employment contracts, it could lead to constructive dismissal.

Identify whether it is a fundamental change to employment agreements

Usually, employers have the right to decide where their employees should work. As such, calling their employees back to the office is generally not a fundamental change to employment contracts. However, there are exceptional circumstances. For example, if working from home is a contractual term between the parties, requiring the employee to stop working from home would be considered a repudiation of the employment contract that may lead to constructive dismissal.

In an Ontario case (Hagholm v. Coreio Inc., 2017 ONSC 7713, which was partially reversed in Hagholm v. Coreio Inc., 2018 ONCA 633), the court found that the employer constructively dismissed the employee, partly because the employee was asked to stop working from home to commute to the office every day. Although working from home was not a written term in the employment contract, the court found it was the condition that the employee agreed to sign the employment contract in the first place. The employee lived far from the employer’s office. Had the employee not been allowed to work from home, she would not have taken the offer. Therefore, it was constructive dismissal. As to the employer’s argument regarding the employee’s duty to mitigate her loss by continuing her employment with the employer, the court commented, “it would not be objectively reasonable to require a sixty-year old employee who, more than 20 years earlier had stipulated she would not accept a position if it required her to commute from Waterloo to Toronto every day, to mitigate her damages for the appellant’s breach of contract by doing so.” The employer lost their case, and owed termination pay as a result.

Before calling employees back to the office, employers need to consider whether working from home is a term of the employment contract or has become a term of the employment contract, regardless of whether it is in writing.

How you communicate your workplace policies is important

In order to clarify employment terms, employers need to consider both the recruiting process and how they communicate with existing employees regarding working from home during the pandemic. If an employer insinuates that it is a permanent solution or an employee’s right to choose, they increase the risk of constructive dismissal.

How should you approach a return to the office?

If calling employees back to the office constitutes constructive dismissal, employers may consider giving  an employee termination notice and offering them the same job with the condition that the employer can dictate where to perform the work.

Employer vs. employee rights

As mentioned above, usually, employers have the right to relocate their employees to another workplace. Even when that means the employee has to move to another place, as long as the employer covers the moving expenses, the employee has to accept the relocation, or it means that the employee resigns voluntarily. As such, it shouldn’t be a problem for employers to call their employees back to the office, as long as it is not a fundamental change to their employment contract.

That said, employers have to act reasonably and in good faith. It means employers may have to give notice in advance so that employees can think it through and make arrangements accordingly. For example, to accommodate working from home, some employees may have chosen to rent or purchase a larger residence far from the office, or they may have arranged childcare accordingly. It may be unreasonable or even unrealistic to require them to go back to the workplace immediately. It may be regarded as a bad faith action and may lead to constructive dismissal. That said, in this situation, the advance notice may not need to be as much as a termination notice. Employers may consider giving out relatively short notice but remaining flexible if some employees genuinely need more time to adjust to the change. Or employers may canvass their employees’ needs before giving out advance notice so that all or most of their employees can come back to the office at the same time.

Apart from the above considerations, employers should also keep in mind their obligations to provide a healthy and safe workplace under the Occupational Health and Safety Act, RSO 1990, c O.1, and to accommodate employees under the Human Rights Code, RSO 1990, c H.19. If employees have good reasons to believe that their workplace is not safe, due to Covid-19 or other reasons, they may refuse to go back to the office. If employees have a human rights ground that prevents them from going back to the office every day, such as family care obligations, employers may need to provide accommodation accordingly. Advance notice alone may not be able to solve these problems.