My employee has refused to return to the office. What can I do?

As Canadians shift toward living with COVID-19, many employers are recalling employees back to the physical office. For some, this means working in an office environment for the first time since March 2020. This article provides preventative steps to mitigate the conflict and headaches caused by recalling employees to work, as well as solutions if an employee refuses to return to the office.

Consider why your employee is refusing to return to work

Some employees may claim the workplace is unsafe due to COVID-19 and refuse to return to the office. Employers are obligated to provide a healthy and safe workplace under the Occupational Health and Safety Act (“OHSA”). To satisfy this obligation, many employers have implemented mandatory masking and vaccination policies. However, while mandatory masking and vaccination policies may prevent some employees from refusing to work due to allegations of an unsafe workplace, it could result in costly wrongful dismissal claims if employees are terminated due to non-compliance. Balancing these obligations and liabilities is challenging, and consultation with an experienced employment lawyer is recommended.

In addition, some employees may have a human rights ground under Ontario’s Human Rights Code (“Code”) that prevents them from going back to the office, such as family care obligations, and the employer may have to provide accommodations.

Implement a remote work policy to manage the employment relationship

Many employers have implemented remote work policies that clearly set out the circumstances, if any, where an employee can work remotely. For example, if you have employees that cannot return to the office for a reason protected under the Code, the appropriate accommodation could be allowing them to work from home.

Do not make working from home a contractual term of the employment relationship

Generally, employers decide where their employees work, unless stated otherwise in the employment agreement or if the remote work arrangement was a condition of the employee signing their employment contract. Regarding the latter, for employees who worked in the office pre-COVID-19, this should not be a concern. However, act cautiously when recalling employees who were hired during the COVID-19 pandemic, especially if they signed their employment agreement based on a remote work arrangement.

Provide employees with adequate notice before recalling them to the office

Providing employees with advance notice of their recall to work is a useful tool to manage conflict. Advance notice will allow employees to make arrangements to return to work, and manage Code protected family obligations. Further, providing advance notice will give both you and your employees adequate time to consider accommodations, if necessary.

Notify your employee that if they do not return to work, they have abandoned their position

One option if your employee refuses to return to work is claiming that they have abandoned their position. Clearly communicate that it is a term of employment that your employee work at the office. If your employee refuses to do so, notify them that they have abandoned their position and terminated the employment relationship.

While this option may be appealing as you would not be obligated to provide any severance package, there is a risk your employee may claim constructive dismissal, which could lead to a costly outcome.

Consider termination without cause

If an employee refuses to return to work, absent a Code protected reason, a more cost-effective approach would be to terminate them without cause. Before doing so, you should consult an experienced employment lawyer to ensure your employment agreements have enforceable termination provisions. With enforceable termination provisions, you can limit your employee’s entitlements upon termination to the Employment Standards Act, 2000, minimums. This will often save significant costs on severance packages.