THE POST-COVID WORKPLACE: WHAT EMPLOYERS AND EMPLOYEES NEED TO KNOW
As case counts dwindle and vaccination rates skyrocket, we can finally look forward to hugging our friends and relatives, indoor dinner parties, haircuts, resuming gym routines and, for some of us, getting back to our workplaces. Over the next month, we will be answering some of the most asked questions we are hearing from employers and employees about the post-COVID workplace.
In this article, we discuss whether employers can require employees to return to the physical workplace.
In subsequent weeks, we will be addressing:
(i) vaccination policies and whether a mandatory vaccination policy is permitted or recommended;
(ii) how to manage interprovincial remote workforces; and
(iii) policies and best practices to ensure a safe return to work and/or manage a hybrid workplace.
Can employers require employees to return to the physical workplace?
For many that spent the past 16 months trapped in cramped apartments, working in bedrooms or at messy kitchen tables, adding the phrase “zoom fatigue” to vocabularies, and attempting to meet deadlines while simultaneously keeping children engaged with virtual schooling, the thought of physically returning to work is a welcome reprieve. Many employers are also looking forward to returning to the physical workplace because they believe remote environments have adversely affected their work cultures or because the cost of office leases for a remote workforce became increasingly unjustified.
However, not all employees are clamouring for a return to long commutes and reduced productivity because of (among other things) endless interruptions from co-workers about TV spoilers or their latest sports-related anguish. According to a June 2021 study from BDC, 55% of employees indicate they prefer to continue working remotely. Another recent KPMG study found that 77% of employees want a “hybrid” model to split time between offices and remote locations.
Despite statistics suggesting that most employees want to continue some form of teleworking arrangements, many employers are still contemplating requiring employees return to the office. While we have yet to see any post-COVID case law on this point, pre-COVID cases traditionally found employers have a general right to organize its workforce where and when it sees fit. Absent express contractual terms or a finding the employee has bargained for a particular geographic location, Courts have also found employers have an implicit right to move employees where:
(i) the employee has been moved on several occasions in the past;
(ii) the employer has a custom of regularly moving employees; and
(iii) the employee has expressly indicated a willingness to move.
As last year’s “work from home” requirement resulted from a public health emergency and government-mandated lockdown (rather than an employer’s business decision), Courts might follow the pre-COVID cases and indicate employers are still permitted discretion to determine the location of its workforce. However, if an employee challenges an employer’s directive to attend the physical office, particularly if the challenge is based on legitimate human rights grounds, employers may face difficulties arguing a complete return to the physical workplace is a businesss requirement given many businesses survived with remote workforces over the past 16 months. With respect to human rights, Courts will likely consider an employee’s personal circumstances, such as child care or eldercare obligations, in determining whether a directive to return to the office is reasonable, constitutes a constructive dismissal, or could be interpreted as a discriminatory change in policy.
Given the uncertain legal landscape, the high number of employees expressing a desire for hybrid arrangements, concerns about the post-COVID “resignation boom” that has already seen 130,000 people leave the workforce, and the impact of unhappy employees on team morale, employers should look broadly when considering a “requirement” that employees to return to the office full-time. Even if legally permissible, the “legal” route is not always the recommended course of action. It may be prudent to carefully weigh other factors such as employee engagement, low morale and its impact on productivity, and the benefits of flexibility both during and after hours. These considerations will often build employee loyalty and commitment.
If requiring a return to the physical office, even on an occasional basis, employers should consider providing employees as much advance notice as possible, in writing. In addition to lessening exposure, this will give employees time to make alternative arrangements regarding any obligations which may have arisen or practices they developed over the past 16 months. It will also give employers time to determine what accommodations, if any, need to be offered to employees whose family duties may now conflict with a directive to return to the office.
If considering hybrid arrangements, employers should also determine whether they will provide employees flexibility to choose which days they attend the office, or if employers will schedule employees in advance. While employees may prefer having flexibility, having the employer set schedules will ensure office space is used efficiently and avoid any overcrowding issues. We will be discussing these issues further in our subsequent article on recommended policies and best practices to ensure a safe return to work and/or manage hybrid arrangements.
If you are an employer or employee with questions about returning to the post-COVID workplace, please contact a Turnpenney Milne lawyer.
Written by Jeff Rochwerg and Cereise Ross