Around a quarter of the workforce in Canada was working exclusively from home two years ago. But now, with more and more employers returning to in-person work, what does this mean for Canadians who embraced remote work?
When COVID-19 struck Canada in early 2020, it came with a huge shift in how we work, with many offices closing their doors and office workers vacating cubicles in favour of remote work to cut down their risk of transmission.
It was a mass exodus to remote work that had never been seen before. According to Statistics Canada, only seven per cent of workers in Canada said they “usually” worked from home in 2016. This jumped to 24.3 per cent by May 2021, and remained there until early 2022.
But since then, workers have slowly been trickling back into the office. By May 2022, the share of workers working exclusively from home had gone down to 22.4 per cent, then 20.1 per cent in May 2023.
As of November 2023, StatCan data shows that just 12.6 per cent of the workforce aged 15 to 69 years old still exclusively work from home.
Part of this change has been due to an increase in hybrid work arrangements, in which workers work some hours at home and some outside the home. The amount of workers in hybrid arrangements has more than tripled in the last two years, going from 3.6 per cent of workers to 11.7 per cent by November.
Navigating the how, when and why of whether to return to in-person work is a complicated prospect because of the way these remote arrangements started, said Jon Pinkus, a labour and employment lawyer with Samfiru Tumarkin LLP.
“Whenever we’re talking about the rights of employees, it’s a question really of contract, right? Sometimes we’re talking about a written contract. Sometimes we’re talking about implied rights of contract. And this has been, in many cases, uncharted waters, right? Because we’ve never had a situation where everyone, all of a sudden, became remote,” he told CTVNews.ca in a phone interview.
Generally, the way it’s always worked is that if someone is hired as a remote worker and has been working remotely for a number of years, “that’s become a term of your employment,” he said. This holds true even during the pandemic — if you were hired in a remote position, you can’t be forced to suddenly attend an office as a requirement of your employment.
But what about those whose jobs became remote only because of the pandemic?
All of the case law surrounding remote work is from before the pandemic, making it hard to say for certain what the legal precedent is.
“An employee who is being asked now to go back to the office after having worked remotely for several years should absolutely be consulting with a lawyer,” Pinkus said.
With 2024 just around the corner, any employer who went remote during the pandemic and wants to bring employees back to the office against their wishes has kind of missed the window to do this easily, he added.
“The time to set parameters was in 2020 and 2021, where it could be conveyed to those employees that look, we may be continuing this into 2023, but this is ultimately a temporary arrangement, and we expect we’re going to bring you back in as soon as circumstances allow,” he said.
Employers who laid out these expectations earlier can refer back to them in the event of employees complaining about a return to the office.
“If you have an employee who was hired in person, let’s say in 2015, and then during the pandemic, was put in a remote arrangement, and then in mid-2022 was told to come back to the office, it’d be very difficult for that employee to say, ‘Well, it’s now a term of my employment that I get to work remotely,’” Pinkus said.
But if employers didn’t set official expectations early on around a return to work and just allowed employees to continue working remotely since early 2020 up until now, they will likely have more difficulty pushing a sudden requirement to return to the office, he said.
The World Health Organization removed its state of emergency declaration for COVID-19 in the spring of 2023, Pinkus pointed out, and if employees who went remote in 2020 were still working remotely past that point, “it starts to look like an indefinite arrangement.”
“And once an employee has an indefinite arrangement, whether that be they’re working in a certain location, or they’re working from home, they’re entitled to have that continued,” Pinkus said. “And if the employer says, ‘Well, now we don’t want you to work from home remotely anymore,’ that could be seen as a fundamental change that the employee could decline.”
Employers can still fire whoever they want, he added, but an employee who was fired in this situation could argue the firing was without cause and that they are entitled to compensation.
“I think the only solution available with respect to employees who are not agreeable to going back into the office is to give them advance notice,” he said. “And potentially significant advance notice of that change.”
That advance notice should be the same amount of time, generally speaking, as that person’s severance entitlements, Pinkus explained.
“Basically, the employer would have to look at it as, we’re terminating this person, giving them working notice and these will be the new terms,” he said. “So you could say, ‘We are going to require you to work from the office from now on, but we acknowledge that you are someone who has a 12-month severance entitlement, so it’s not going to be effective until this time next year.’”
This would give the employee time to either search for a new job where they could continue working remotely, or make the changes needed to support their return to in-person work.
WHAT IF I MOVED DURING THE PANDEMIC?
In the early years of the pandemic, a trend that came along with remote work was workers moving farther away from the office, with some even moving to other provinces while continuing to work remotely for the same company.
If someone has moved away during the pandemic but an employer is trying to make employees return to in-person work, a key piece of information would be whether the employer knew about the move, Pinkus said.
“If the employee just moved without telling anyone, then the employer is not going to be held responsible for that,” he said.
“But if the employer says, ‘Oh, OK, you’re moving to P.E.I., that’s fine, you’re remote’ and they update their system, they don’t make any plans or requirements for them to come back at a certain date and they don’t set any parameters around that, then I think the employer bears the responsibility and is now going to have to deal with that employee as a remote employee going forward. And if they terminate that employee, they could do it, but they’re going to owe a severance package.”
DISABILITY RIGHTS IN A RETURN TO WORK SCENARIO
One of the benefits of the shift to more remote work was that it opened up more opportunities for people with disabilities.
In 2022, the percentage of people with disabilities who were employed rose to 21.3 per cent, the highest it’s been since 2008 and more than two percentage points up from 2021, BNN Bloomberg reported earlier this year. The same year, labour force participation rate went up three times as much for people with disabilities compared to those without disabilities.
Some experts have expressed concerns that the shift away from remote work will strip away some of the opportunities that opened up for people with disabilities.
The good news is that if an employee was hired as a remote employee and has disabilities that prevent them from in-person work, employers would have a difficult time justifying cutting them now because they can’t go to the office.
Pinkus added that employees who do not have physical disabilities but who cannot attend an office due to being immunocompromised or otherwise at a high risk from COVID-19 should still be able to point to this as a reason to stay remote if they have proper documentation.
“If COVID has introduced permanent risks to their health that can only really be properly mitigated by remote work, I think those employees would have a leg to stand on to say, ‘I need this, here’s my doctor’s note confirming that I need this and the doctor says this is what’s required,’” Pinkus said.
“I think it’s gonna be very difficult for an employer to refuse that because they’re going to have to show that it poses what we call ‘undue hardship’ for that employee to work from home.”
MOST OFFICE RETURNS GOING SMOOTHLY, EMPLOYERS FINDING COMPROMISES
Although the dynamics are slowly returning to more in-person work, Pinkus said he hasn’t personally seen many cases of employees disputing a return to work, nor employers navigating how to force employees back.
In cases where the workforce prefers remote work, employers have largely found compromises or simply allowed certain employees to stay remote.
“What I have seen for the most part is that employers have implemented hybrid arrangements or have continued the remote arrangements,” he said.
“Most employers and employees have reached somewhat of an equilibrium on this issue. Although (conflict has) kind of cropped up here and there, it’s not been common.”
According to StatCan, many workers still working remotely were parents with young children. In November 2023, one in three parents with at least one child under the age of five were working exclusively from home or had hybrid arrangements.
Every work situation is different, Pinkus said, and all of these discussions surrounding whether an employee can be required to return to the office, or whether employers can expect this of employees, relies on the communication that has passed between all parties — what contracts say, what expectations were expressed and how employees performed while remote.
“While everything we’ve talked about is kind of a good rule of thumb and a good guideline, ultimately, anyone who’s thinking of refusing to return back to work shouldn’t do so before they speak with a lawyer to understand what their rights are,” Pinkus said.
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