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Navigating the ‘new normal’ – best practices for recalling employees to the office

Many public health restrictions related to COVID-19 have lifted across Canada, resulting in barriers to in-person work becoming a thing of the past.

Some Canadian employers have recalled employees back to the office, while many other employers have allowed employees to continue working remotely.

This shift in remote work or a hybrid working model has been coined as the “new normal” and has suddenly become the status quo in many industries.

Yet still, not every workplace is conducive to 100 per cent remote work, nor is it desirable for many employers. That said, unravelling the remote working arrangements of the last two years may be difficult for some companies, especially where their workforce has adapted to working remotely.

For  employers who want to recall employees back to the office – but are unsure as to how to address this issue – below are some key points to consider when deciding whether to recall employees back to the physical workplace.

Health and safety considerations

The removal of legal requirements for remote work does not mean the end of all infection control measures related to COVID-19, as there are still growing concerns of new variants forming.

Under occupational health and safety legislation, employers have an obligation to take reasonable measures to protect individuals in the workplace from infectious disease. As restrictions ease, it may be prudent for employers to keep certain protections in place in order to assure employees that any health and safety concerns in the workplace continue to be adequately addressed.

Refusal to return to work

As a general rule, employers have the power to dictate where and how employees complete their work, and these expectations are typically outlined in employment agreements or workplace policies for new and existing employees.

Regardless of such policies, some employees may still refuse to return to in-person work, insisting on either a “hybrid” work model (i.e. part-time in the office and part-time working remotely) or full-time remote work. Further, employees may have additional reasons for refusing to return to in-person work, which include but are not limited to, the following:

• An employee may have a medical condition that makes workplace exposure to COVID-19 a significant health risk. In this case, the employer should initiate the accommodation process by first confirming the employee’s medical condition. The employer must also consider potential accommodation solutions that are reasonable in the circumstances and that won’t cause the employer “undue hardship”.
• If the employee does not have a medical condition that heightens their risk of exposure to COVID-19 and is simply concerned about exposure to the virus, the employer should approach the situation as a “work refusal” under occupational health and safety legislation and consider conducting a work refusal investigation.
• If an employee is unable to return to in-person work because he or she must care for a family member, the employer should initiate the accommodation process on the ground of family status. Once again, the employer must also consider potential accommodation solutions that are reasonable in the circumstances and that won’t cause the employer “undue hardship”.

If employees do not have a legitimate basis for refusing to return to work at the physical workplace, the only limitation on the employer’s right to insist on such a return is contractual. Unless an express or implied contractual term grants the employee the right to work remotely, the employer can insist on the employee returning to work.

owever, if the employee’s contract grants them the right to work remotely, insisting on the employee’s return to in-person work raises constructive dismissal risks.

Best practices for recalling employees to in-person work

To minimize employee dissatisfaction and termination liabilities in recalling employees to in-person work, employers should:

1. Develop a return-to-work plan that takes into account the pace at which employees will be returning to work. Employers may consider returning employees to work in segments. Additionally, employers should determine whether they are prepared to offer employees the opportunity to continue working remotely on a part-time basis or occasionally. Employers should also stay up to date with respect to any infection control measures that reflect remaining public health guidance for COVID-19.
2. Communicate recall plans well in advance of the required recall date. This will give employees the opportunity to make alternative arrangements for transportation, family care, and any other aspect of their personal lives that may have changed during the pandemic.
3. Structure future remote work arrangements under a Remote Work Policy that provides employees with a clear explanation of when and how remote work will be permitted.

It is strongly recommended that employers consult with experienced employment law counsel when dealing with employees who refuse to return to the workplace, as each case turns on its own facts.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.