What Canadians' options are as companies push a return to office

Global News

2 days ago

As the number of in-office days is set to increase for many of Canada's hybrid workers, return-to-office mandates are setting the stage for tension between employees and employers.
Remote and hybrid work spurred by the COVID-19 pandemic is giving way to arrangements more closely aligned with traditional office norms now that labour market conditions have swung in companies' favour. Some of Canada's largest financial services firms, including several of the big banks, have said they will shift to four in-office days a week beginning in the fall.
Employment lawyers say they are hearing from clients who don't want to lose one or more of their at-home days, but that companies are taking a harder line compared with a few years ago when a lower unemployment rate meant the market favoured job-seekers rather than their bosses.
'Now, it seems with economic uncertainty, employers have bigger leverage to basically impose unilaterally that kind of stuff and tell people, 'If you don't like it, you might as well go,'' Philippe de Villers, the chair of Chartered Professionals in Human Resources Canada, said in an interview.
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If you're in that situation, it may feel like you must choose between getting with the program or getting a new job. Though that may be true in many cases, experts say there are some other options.
The basic choice
One option for employees who don't want to return to the office is to look for another job, said Sunira Chaudhri, founder and partner at Workly Law, in an interview.
'Employees are considering career changes en masse, and as you can expect, those that are facing a stricter return to work protocol that do not align with that are, more likely than not, looking to jump ship and find a more flexible arrangement if they're simply not on board.'
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Return to office trends are more common with enterprise-level companies like banks and accounting firms compared with small businesses or ones in industries more concerned about retaining talent, Jon Pinkus, employment lawyer and partner at Samfiru Tumarkin, said in an interview.
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BMO, RBC and Scotiabank have all stated that more workers will be required to be in the office four days a week beginning in the fall, citing operational improvements and opportunities for collaboration.
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If an employee doesn't wish to leave their current position, and doesn't require an accommodation based on their family status or medical needs, they may need to comply with return-to-office mandates set by their employer.
Family status
Exceptions may need to be made based on family circumstances.
Family status is an issue that may require accommodation, and one where employers must be 'pretty careful,' Chaudhri said, as many employees with young children have framed their days around childcare responsibilities.
She said childcare responsibilities may need to be accommodated if they cannot be met by going back into the office on a full-time basis. For example, she said it may be difficult for someone to pick up a child from daycare if they are required to be in downtown Toronto until 5 p.m.
'If it's just impossible or unreasonable for an employee to make those types of changes, an employee can seek an accommodation with respect to family status, and say, 'I actually have to be in my neighbourhood at 4:30 p.m.,' as an example,' Chaudhri said.
Medical accommodations
If a person's medical needs have changed since they were in the office on a more full-time basis before 2020, Chaudhri said employers may need to consider medical accommodations.
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'Employers need to be pretty aware and cognizant of the fact that accommodations might need to be a real part of the conversation of moving people back to work most of the time,' she said.
Pinkus said medical accommodations are one of the most common issues he is seeing among clients regarding return-to-office mandates.
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He said employees may need accommodations for issues that may make it difficult for an employee to drive or sit for long periods. Other issues could include things like access to medication that may not be practical to bring into an office or needing to be close to a hospital or doctor.
'You do have an obligation as an employer to accommodate someone up to the point of what's called undue hardship,' Pinkus said.
Undue hardship refers to a significant difficulty or expense related to accommodating an employee's needs or requests, according to Toronto-based law firm Achkar Law.
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Legal action
Pinkus said if an employee started working from home full time during the COVID-19 pandemic, and their employer didn't communicate whether the arrangement was temporary or permanent, but is now trying to get them back into the office four days a week, it could be considered a breach of contract.
However, he said that if there was clear communication by the employer that remote working wouldn't last forever, it would be more difficult for an employee to launch any legal action.
Pinkus said employees considering refusing to return to the office should be 'very careful' because if their employer did have the right to compel a return to the office, it could be considered abandonment of employment — meaning the worker is not entitled to severance pay.
'If you're wrong about it, the consequences are quite serious.'
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Under certain circumstances, Pinkus and Chaudhri say a constructive dismissal may factor in.
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According to Pinkus, constructive dismissal can occur if an employer changes the fundamental term of their employment without sufficient notice and without the employee's consent.
'There is precedent for the notion that an employer can't simply take someone from a telecommuting role and put them in a non-telecommuting role without their permission,' he said.
If an employer has stuck with a remote or hybrid working arrangement for a long time, then Chaudhri said some employees might say 'this is my new normal,' and the return to office constitutes a 'meaningful change to my employment.'
'In some cases, employees may allege that their contract of employment has been breached and seek wrongful dismissal damages,' she said.
Chaudhri added that companies have been very systematic about slowly increasing in office days over time, which she thinks is in large part to avoid 'the likelihood of success of a constructive dismissal claim.'
She said it is up to the employee to prove they have been constructively dismissed, which can be difficult.