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Employers be warned: If you aren’t careful, remote work could become a permanent feature of your staff’s employment term

By October 20, 2021 No Comments
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Howard Levitt: Order them back the office now or risk a constructive dismissal action later

Employers have the unequivocal right to force employees back to work and to declare them to have abandoned their employment without compensation if they refuse.

With two recent important pronouncements on both sides of the border, employers are worried about whether they can keep up with the ever-evolving issues surrounding COVID-19. Today and next Saturday, I will answer the many employment law questions swirling about.

Prime Minister Justin Trudeau announced that all federal government employees, including Crown corporations, must be vaccinated in order to retain their jobs, even if they work from home. This is revelatory since, absent legislation, employers could never compel employees — who they had permitted to work from home — to be vaccinated.

South of the border, Ken Griffin, founder of hedge fund Citadel LLC, publicly pronounced: “It is time to get employees back to work because working from home prevents the mentorship, interactions, managerial experiences and exchange of ideas allowing U.S. businesses to prosper.”

He noted that, for younger employees, “the loss of early career development opportunities is going to cost us dearly over the decades to come.”

But he cautioned that “if you talk to other CEOs, they live in fear of how we will be publicly persecuted for delivering this straightforward message: It is time to go back to work.”

As he put it: “We need it for our government workers. We need it for corporate leaders. We, as a country, it’s time to get back at it,” asserting that remote work was damaging America’s competitiveness relative to Chinese workers. He called for U.S. President Joe Biden to deliver that message from the top.

Below are my recommendations to some of the questions that are perplexing both employers and staff.

Can, and should, employers require employees to return to their workplace?

What is true south of the border is equally so here. Most employers are anxious to get their employees back into the offices. A study on the productivity of the Canadian workforce by enterprise firm Aternity Inc. found that employees who work from home are 22 per cent less productive per hour worked relative to those at the office and, more alarmingly, found that productivity gap increases the longer employees remain home.

This desire to get employees back to the office is juxtaposed with a different competing fear, that ordering employees back to work will result in many resigning at a time when it is already difficult to recruit and retain for most positions. The majority of studies have shown that employees working from home wish to continue to do so, at least part of the time, and a significant percentage of the workforce is already considering changing jobs. Therefore, ordering employees back to the office against their will will result in many employees resigning, in an era already called The Great Resignation.

Some employees work as, or more, effectively remotely. Employers have the legal option of permitting that for those who do. Companies can also legally discriminate by permitting some employees to work from home and not others. That selection can be based on productivity, the type of work, or any criterion that they wish, even arbitrarily. Employers will have to conduct a delicate balancing act in deciding who will be permitted to continue remote work as our offices reopen.

Can employers order employees back to the office?

Employers have the unequivocal right to force employees back to work and to declare them to have abandoned their employment without compensation if they refuse.

Q: Is there a risk from permitting continued remote work?

A: I issue a cautionary note. If you permit employees to work from home much longer than practically and legally necessary, it will become a term of their employment. Ordering them back to work after that will constitute a constructive dismissal. We are reaching that tipping point now.

I recommend that any employer who wishes to permit employees to work from home for much longer have these employees sign contracts agreeing that they can be recalled to the workplace upon one month’s notice. If they refuse to sign, order them back now or risk a constructive dismissal action later.

Q: Who pays the expenses of remote working?

A: I am often asked whether employers are required to pay the inherent expenses of employees working from home. There is no such requirement.

Q: Should you have a formal vaccination policy?

A: Every employer should have a vaccination policy, distributed to all employees, to ensure that everyone understands the rules. Such a policy provides direction to employees and protection to the employer in the event of litigation.

I am constantly asked by clients what that policy should contain. The answer is simple. Whatever the employer wishes it to. Subject to compliance with public health guidelines, there is tremendous flexibility in potential vaccination policies.

Whether you should require mandatory vaccinations and for what groups is a function of the employer’s corporate culture and what makes most sense in its particular context.

A: A mandatory vaccination policy will invariably result in some employees departing. Concomitantly, not having such a policy will upset those vaccinated employees who do not wish to work near the unvaccinated. That is part of the balancing employers must consider.

COVID-19 has become a pandemic of the unvaccinated. The vast majority of employees contracting COVID-19 and, in particular, filling our hospitals are unvaccinated, particularly telling since only about 20 per cent of Canadians are unvaccinated.

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A compelling argument in favour of compulsory vaccinations for those employees who work closely with co-workers, customers or members of the public is that if someone contracts COVID-19 in that workplace, the employer cannot be successfully sued for negligence.

Given that most governments and chief medical officers across Canada now support mandatory vaccination, it will not be long before a court may find a ‘duty of care’ in workplaces requiring mandatory vaccinations and that employers who do not require it are, prima facia, negligent if someone contracts COVID-19 in that workplace.

If the result is death or permanent disability, the legal lawsuit could be in the millions of dollars. Since litigation is determined based on the law at the time a matter reaches court, this — still future — duty of care may well apply to a company’s actions today. That further militates in favour of mandatory vaccinations.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

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. He is the author of six books including the Law of Dismissal in Canada.