Howard Levitt: What the federal government’s return-to-work directive means for non-union employees  

Many of the large federal unions have already launched challenges

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By Howard Levitt and Jeffrey Buchan

The announcement from the Government of Canada earlier this month that federal employees will be required to work from the office at least three days a week starting in September 2024 has many asking the question: can my employer make me return to the office, too?

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This has become a common concern amongst employees in Canada, as many major businesses have already made the decision to require their employees return to the office, including the National Bank of Canada, Amazon, CIBC and others.

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Unsurprisingly, many of the large federal unions have already launched challenges to the government’s recent directive and have encouraged public sector workers to do the same. Tens of thousands of federal workers began working from home at the start of the COVID-19 pandemic, many of them non-unionized and now taking issue with this new requirement.

The truth that many of these employees do not want to hear is that if they are subject to an employment contract that stipulates they must be in the office, the government can require them to return to in-office work. This is true even if they were allowed to work from home as a temporary measure due to the COVID-19 pandemic.

However, if there is no employment agreement that requires the employee to be in the office and the employee has been working remotely for such an extended period that it has become an implied term of the employment relationship, the employer cannot force the employee back to the office without it triggering a constructive dismissal. Further, the employer cannot punish the employee for the decision to work remotely, via a demotion, shorter shifts, or a reduction in pay.

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If an employee was hired as a remote worker, or working remotely has become an implied term of the employment relationship, and the employer attempts to punish the employee for refusing to return to work, the employee may have a claim for constructive dismissal against the employer.

Constructive dismissal claims arise where the employer has made substantial and fundamental changes to an employee’s terms of employment such that the employer has shown an intention to no longer abide by the agreed upon terms – in essence, the job is so fundamentally different from what the employee agreed to that they have effectively been dismissed. If the employee is successful in making this argument, they will be owed full severance pay which can be a costly mistake for employers.

The government’s directive does outline certain exceptions to the mandate, including those who were hired to work remotely prior to March 16, 2020, and employees who, with the consent of their assistant deputy minister, are working remotely at least 125 kilometres away from their designated worksite.

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Interestingly, there is no specific mention in the government’s directive of an exception for those employees who need to work from home for human rights-related issues. For example, there is no exception for those who have family caregiver obligations or those who cannot physically attend work due to a disability. The government added exceptions that will be available in “exceptional” circumstances on a case-by-case basis and employers should make sure individual circumstances are considered in this process. This leaves the onus on employers to navigate the return-to-office mandate on the one hand and the needs of their employees on the other.

Employers in Canada have a duty to accommodate employees who have restrictions on their ability to perform their job, whether due to disability or other protected ground outlined in human rights legislation. Should an employer fail to accommodate these types of needs, or, for example, punish an employee for failing to return to in-office work despite that employee being unable to do so due to a disability, that employer can face significant claims for both human rights and bad faith damages.

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As such, employers would be wise to consider the following when looking to abide by the new government directive, or in any context where even private employers are requiring employees to return to work:

  • Give ample notice to employees about the requirement to return to work and what it will mean for their specific role. This can include discussions about which days would be best to have them in-office versus which days they could work from home due to operational and business-related considerations; and,
  • Be sure to accommodate wherever needed. Prior to punishing an employee for refusing to return to in-office work, ensure that their reason for the refusal is not based on any protected ground under human rights legislation. Should they have a need for accommodation, the employer has a duty to provide one up to the point of undue hardship (i.e., the accommodation is so unreasonable that continuation of the employee’s employment is not feasible).

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Federal employees are already required to be in-office at least two days a week and so employers certainly have a strong argument that merely adding one more day does not amount to a constructive dismissal.  However, until the most recent round of challenges to this directive are decided upon, it is hard to predict with certainty how courts and adjudicators will view these changes.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces and is the author of six books including the Law of Dismissal in Canada. Jeffrey Buchan is an associate at Levitt Sheikh.

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