At the outset of the pandemic, many Canadians shifted to remote work. Now, with more than 59% of the population fully vaccinated against COVID-19, according to data from the federal government, employees across the country are entertaining the idea of making a physical return to the workplace.
As an employment lawyer, I’ve gotten lots of questions from people wondering about their employment rights if they’re called back to work.
Here are five things employees should know about returning to an office after working remotely during the pandemic.
1. Your employer can ask you to come back to the office
Employers can choose to bring employees back to an office setting during or after the pandemic, provided they observe all government-mandated COVID-19 safety protocols. If the understanding before the pandemic was that your duties would be completed at a location designated by your employer and not at home, the company is within their rights to revert to that arrangement.
Our firm is seeing more companies adopting a hybrid model that seeks to strike a balance for employees between working from home and working at the office. But pursuing this model is ultimately at the employers’ discretion.
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You might be able to continue working from home if you need to look after children who can’t attend school or if you have a medical condition. In these cases, the company has an obligation to accommodate your request to work remotely.
2. Refusal to return to the workplace may be treated as a resignation
If you refuse to return to work on-site, your employer could take it to mean you’re resigning or abandoning your job. You are choosing to terminate your employment relationship and forfeiting your right to a severance package.
Employees who are hesitant about returning to the office should have a conversation with their employers about how work arrangements can be made to satisfy both parties. Keeping a dialogue going will make all parties aware of the concerns and reduce the risk of potential conflicts over the issue.
3. Your employer can’t force you to get vaccinated before returning to work
Employers do not have the legal right to make vaccines mandatory for employees.
That may change if the government, federal or provincial, decides to take the lead on this issue and mandates vaccinations for certain types of workplaces or specific positions.
In the meantime, employers cannot penalize or discriminate against employees for failing to get the shots. Treating an employee differently because they haven’t been vaccinated could leave employers open to a human rights complaint.
If you feel like your job is being threatened because you haven’t been vaccinated, it might be in your best interest to speak to an employment lawyer, who will inform you of your rights and help you navigate any potential human rights violations that may have occurred.
4. You don’t have to accept major changes to your job back at the office
When you return to the office after working remotely, your job must remain unchanged. This means your hours of work, compensation, duties, titles, bonus structure and benefits should all be the same.
Your employer can’t make significant changes to the terms of your employment unless your employment contract permits them to.
If you’re facing unwanted changes at work, contact my team before you accept them. Rather than take a pay cut or a demotion, you may be able to treat the modification as a termination. An employment lawyer at my firm, Samfiru Tumarkin, could then be able to secure full severance pay through a constructive dismissal claim.
5. An employment lawyer may be able to help if you’re still on a COVID-19 layoff
If you are still on a layoff related to COVID-19 and have yet to hear back from your boss about a return to work, it may be time to exercise your legal rights.
As I’ve told clients since the outset of the pandemic, temporary layoffs are illegal, even during an economic downturn or global health crisis. That kind of reduction in pay and hours of work qualifies as a constructive dismissal.
If your employer is not returning your inquiries about a return to work, or you believe they have no intention of recalling you, call my firm so we can discuss the next steps you need to take to get the compensation you need.
Is your employer making changes to your job as they bring you back to the workplace? Are you still on a temporary layoff due to COVID-19 and waiting to be called back to work?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.