Why your options may be limited if your employer wants you back in the workplace

The pandemic necessity of doing your job away from the workplace is ending as restrictions and mandates ease and employers refocus on getting people back to in-person work.

While employers can wind down temporary measures, they should also consider how the work environment has changed since COVID-19 took hold early in 2020, that flexible arrangements have proved to be possible, and how employees may feel about going back to in-person work, experts in Canada say. 

"Employees have proven — at least in their own minds — that they are as productive, if not more productive, working from home," said Janet Candido, a Toronto-based human resources (HR) consultant.

"So, that's where the pushback is."

Nadia Zaman, an employment lawyer with Rudner Law in Markham, Ont., said she and her colleagues have fielded an increasing number of return-to-workplace questions in recent months.

"Employers can generally dictate whether the employee can work from home or must return to the office — whether fully or on a hybrid model — unless there was an agreement to the contrary," Zaman said in an interview.

There are some exceptions, mostly limited to legitimate needs for accommodation or concrete concerns about safety.

But Zaman said "employees do not have the right to choose where they work unless they already had that right" prior to the pandemic.

The prolonged stretch of time employees have spent working at home is part of a wider context of change.

Matthew Fisher, an employment lawyer and partner at the Toronto-based Lecker & Associates, said many employees have learned "there can be a different way, that there can be flexibility, that there can be remote work."

He predicts some employees will point to the success of alternative arrangements when employers ask them to get back to in-person work — and that may be part of eventual legal challenges alleging constructive dismissal, when an employee feels they've been forced to leave the job because of job requirements.

In an interview with CBC's Canada Tonight, Fisher said employees can tell their bosses: "You have broken a very fundamental aspect of our employment relationship that I do the best I can, but I have a level of flexibility that I can work remotely."

Zaman said it's more likely that will happen as such arrangements continue, particularly if the employer has not clearly communicated that alternative working arrangements are temporary.

"One way that employers can make sure that they are protecting themselves ... is to clearly communicate to employees that remote work is only continuing as an interim measure due to the pandemic and its after-effects, and that workers will be expected to return to the office at some point," said Zaman.