It’s been four years since the pandemic forced employees around the globe to work from home, but not everyone has returned to the office—and may never.
According to Statistics Canada, 12.6 per cent of Canadians worked from home in November 2023 and 11.7 per cent of workers held hybrid agreements with their employers. That’s a big jump from 2016, when only seven per cent of Canadians worked remotely.
While some companies are now requiring workers to return to the office, this mandate isn’t ideal or even possible for everyone, especially after a lengthy period of working from home. Employment lawyer Lior Samfiru, co-founding partner at Samfiru Tumarkin LLP, reveals he and his team speak with employees in Ontario, Alberta and British Columbia about this issue daily.
“Individuals have structured their lives around the fact that they’ve been able to work remotely, so to be told they need to come into the office could be hugely problematic,” he says. “How do they know their rights? What are some things they might not realize? There’s a lot of misinformation out there.”
In partnership with Samfiru Tumarkin LLP, we take a look at what employees need to know about a mandated return to work in Canada in 2024.
Resignation vs. termination
Samfiru reveals that when post-pandemic life resumed in 2022, companies were able to call employees back to work because the special circumstances that led them to work remotely were over. If an employee refused to return at that time, it was generally considered a resignation.
Calling employees back to the office in 2024 is different from a legal perspective. That’s because since employers have allowed staff to work remotely for two additional years, it’s become an entrenched term of employment. Now, if a non-unionized employee protests a return to the office and loses their job as a result, it is considered a termination.
Get breaking National news
“Employers can no longer go back and insist on the way things worked prior to the pandemic,” Samfiru says. “That does not mean you can physically stop the employer from doing that, but if the employee refuses and as a result they lose their job, they’re entitled to severance.”
Additionally, Samfiru notes that if an employee is unable to return to the office due to a medical issue or caregiving responsibilities, employers must provide reasonable accommodation, which can include continuing to work remotely. “Employers have a legal duty to accommodate, and failure to do so could be a violation of human rights,” he explains.”
Severance may be higher than you think
Samfiru explains there are many misconceptions about severance and how it’s calculated. In reality, there are three main considerations for non-unionized employees in determining what they’re owed: age, length of employment and their position.
“It’s not a direct correlation of, you get this much because you worked two years,” he says. “It’s different if you’re 60 years old or 30 years old; if you’re a line worker or a vice-president.”
The employment lawyer explains that employees with short service of three years or less are treated disproportionately better than long-term employees when it comes to severance packages, because packages usually max out at around two years’ pay.
“People often believe that if they’ve only worked for six months, they’d get nothing. Not true,” he adds. “For example, our firm previously secured six months’ pay for a client in a sales role after just six months of employment. Employees can be entitled to substantial severance, with a cap at 24 months.”
Employers may also owe severance to contract employees in these situations. If the contract ends early, in most cases the employer is required to pay the balance of the contract, Samfiru explains. And if you’ve had several back-to-back contracts that are now coming to an end, you may be considered a regular employee.
“So, if you’re let go, they must give full severance,” he adds.
Don’t sign your first offer
If you’re wondering how much severance you should receive after a termination, Samfiru Tumarkin LLP has an online severance calculator that estimates figures in Ontario, B.C. and Alberta. The calculator should be used as a guide to get a sense of what you’re owed, but it’s important to speak with an actual employment lawyer at their firm before signing anything.
“I would say 90 per cent of severance offers are a lot less than what the person is owed,” Samfiru says. “The employer itself may be unaware of how much it owes the employee, or the employer might hope the employee doesn’t know and will accept an inadequate severance offer. That happens every day.”
Unfortunately, once you sign a termination letter and agree to a severance package, you can’t go back. Samfiru reveals that people often contact him after accepting an offer, only to realize they should have received more.
“But now they can’t do anything about it, because they signed that piece of paper,” he says. “So the message I’ve been advocating for as long as I can remember is, no matter what, no matter who you are or who your employer is, do not sign off on that offer. If you do, it’s going to be too late to do anything.”
For more information on your rights as a non-unionized employee—whether you’re being asked to return to the workplace or facing job loss—contact Samfiru Tumarkin LLP before making any decisions.