Articles and insights on Ontario employment law for employees and employers.
February 2, 2023
Elon Musk’s acquisition of Twitter and his order requiring all employees to return to the office and cancelling of all remote work arrangements, has sparked public debate on remote work. As the CEO of the social media giant, Elon has taken a tough stance on his workforce, with a remote work ban and a mandate for full-time presence in the office. With nearly half of the employees being terminated, the remaining workforce is bracing for gruelling work hours and an in-person office experience.
This sudden change in the work environment has employees wondering again about their rights in the face of a remote work ban. Can an employer make you come back to the office?
Before the COVID-19 pandemic, the standard mode of work was in-person, with remote work being an exception. This is why many contracts from that era either explicitly stated that you were required to work from the office or were silent on the matter. Accordingly, and generally, if a place of work isn’t specified in your employment contract, it is within your employer’s rights to recall you to the office.
The COVID-19 crisis, however, ushered in a new era of remote work. Many employees who were allowed to work from home during the pandemic continue to do so, even after restrictions were lifted. The reasons for this prolonged remote work scenario include higher productivity, flexibility, and lower employee turnover.
Notwithstanding the implied right of an employer to dictate the location of work, the longer an employer allows remote work to continue, the higher the likelihood of an Ontario Court finding that it has become an implied term of the employment agreement. If it does then an Order to return to the office could be a
Constructive dismissal occurs when an employer makes significant changes to an employee’s job or working conditions without the employee’s consent, which results in a fundamental breach of the employment contract. It can include changes in compensation, workplace harassment, change in reporting structure, change in job duties, change in benefits, as a result of a temporary suspension or layoff, among many other circumstances.
See my article on Constructive Dismissal for more information on what can amount to a constructive termination in Ontario.
Employers need to weigh this possibility when deciding whether to mandate a full-time return to the office, or when deciding on a hybrid work model.
Lastly, it’s important to understand remote work accommodation in the context of Ontario Human Rights. If there is a reason (protected by the Ontario Human Rights Code) that an employee should work from home then it will be more difficult than ever for an employer to argue that it would amount to undue hardship to allow remote work.
Family-status accommodation (like caring for young children or elderly parents) may entitle an employee to work from home. It would not be undue hardship on the employer to allow this when they’ve been accommodating work-from-home with minor business interruption for the past few years. Likewise, physical or mental health struggles may also require remote work accommodation, if recommended by an employee’s doctor.
If you are an employee who is unsure of your rights regarding a return to office work scenario, or an employer weighing the pros and cons of ending work-from-home, it is essential to seek legal advice.
Justin W. Anisman is ready to provide valuable insights and advice on your specific circumstances. To learn more about hisservices and how he can help you, reach out to him online, by email (Justin@Anisman.Law) or by phone (416.833.8443).
Justin W. Anisman is an Employment Lawyer and principal of Anisman Law. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing.
Justin W. Anisman can be reached by phone or email 24 hours a day and is always available for a free in person or telephone consultation.
