As employers cautiously begin reopening workplaces in the face of continued COVID-19 variants, a new reality is starting to sink in. Work from home policies, or some sort of hybrid workplace policy, will cut down on expenses, keep employees happier with a flexible work environment, and, in some cases, provide opportunity for increased productivity. And as the Delta Virus makes clear COVID will be with us for a long time, employers may find a remote work policy is essential to staying in business.
Can employers require employees to return to the office?
To be clear, apart from a few exceptions, employers can require their employees to go back to the workplace. If an employee does not have a good reason, such as human rights grounds which are addressed below, for not going into the workplace, it is well within an employer’s legal rights to discipline or even terminate them. However, a challenge that employers may face is that some employees prefer working from home and if they are required to return to the workplace.
Faced with the potential of losing key employees due to a lack of flexibility, it is prudent for employers to develop a remote work policy that clearly outlines what employees can expect.
What are your workplace obligations as an employer in the era of COVID-19?
In some cases, a remote work policy may be essential to workplace safety. As an employer, you have an obligation to maintain a safe and healthy workplace. The issue of mandatory vaccinations in the workplace has become a necessary topic of discussion when it comes to workplace health and safety. While mandatory vaccination policies have been implemented by many employers across Canada, there has not been any specific guidance on this issue at all levels of government. There is a group of people, which may include your employees and customers, that are either choosing not to get vaccinated for personal reasons or cannot get vaccinated due to medical or religious reasons. In order to protect your employees, you may require employees who are experiencing COVID symptoms or are not fully vaccinated to work from home. This is especially true if you have vulnerable people (e.g., patients) in your workplace, and physical distancing and universal masking may not be sufficient to protect them. Having clear policies regarding vaccinations and/or protocols in place for what happens if an employee exhibits symptoms will also make most customers feel comfortable entering your workplace.
If your workplace can be reasonably considered unsafe or unhealthy, your employees may be entitled to refuse to work, or your customers may refuse to come to your premises.
How can a remote work policy help in the era of COVID-19?
Employers have a duty to accommodate. A remote work policy may be one of your accommodation options in this new era. For example, some employees may have a legitimate medical reason not to be vaccinated, such as they may be allergic to the vaccine, or their sincere religious beliefs may prevent them from getting vaccinated (rare as either of those situations might be). If an employer requires employees to be fully vaccinated to return to the workplace, where possible, those unvaccinated employees could be allowed to work from home. Similarly, there may be employees who need to work from home due to COVID-related reasons. For example, some employees may have to take care of their children at home because they were exposed to COVID and need to be home for a period of time to self-isolate. When these incidents happen, the employer may have an obligation under human rights laws (e.g., Human Rights Code, RSO 1990, c H.19) to provide accommodations to the employee up to the point of undue hardship, and working from home may be one of the best options. If you fail to live up to this accommodation obligation, your employees may seek legal recourse against you for damages, and if terminated, may seek to be reinstated.
How should employers prepare a remote work policy?
When preparing a remote work policy, employers should also consider certain related issues. For example, employers should consider issues such as:
- How to deal with and record working overtime or a reduced workload for remote employees.
- If certain benefits should be converted or replaced.
- How to deal with additional expenses incurred by employees for working from home.
- How to ascertain or record tardiness, absences, and leaves.
- How to collaborate when people cannot get together.
If not properly dealt with, these issues may also lead to disputes and unexpected expenses.
If you need clarification or assistance with a remote work policy or any other COVID-related workplace policies, contact Hum Law to guide you through each step.
We encourage you to contact Hum Law immediately for legal assistance on all your workplace matters.
Call us at (416)214-2329 or email info@thehumlawfirm.ca