The Dutch are aiming to make work-from-home legal. Can Canada do it too?

The Netherlands is on its way to becoming the first country in the world to make work-from-home a legal right, according to a report by Bloomberg published July 5.

According to the report, the legislation was approved by the lower house of the bicameral parliament July 5, but would still need to go through the Dutch senate before its final adoption.

“The law forces employers to consider employee requests to work from home as long as their professions allow it,” the report said.

In Canada, several companies adopted a work-from-home policy at the start of the COVID-19 pandemic in 2020 — some then moved to a hybrid model as public health restrictions eased. But establishing the right to work from home as a law, might not be an easy or quick process in this country, according to an employment and disability lawyer.

“It’s certainly possible. But the challenge with doing it in Canada is that we would need to deal with that at both the federal and provincial levels,” said Jenson Leung, a lawyer at the Vancouver-based law firm Samfiru Tumarkin.

“So for example, the federal government could implement some type of remote work policy for industries that are federally regulated, but the vast majority of workplaces are provincially regulated, which means that it’s going to be on a province-by-province basis,” he added.

Leung said the best way people can try to create change is by bringing it to the attention of politicians and policymakers.

Leung said the “big thing to keep in mind for Canada” is that currently, if an employee who has always worked from home refuses a sudden requirement to go into the office, then that could lead to “constructive dismissal.”

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As explained on the Government of Canada website, the phrase “constructive dismissal” describes situations where the employer has not directly fired the employee. Rather the employer has failed to follow through with the contract of employment in a major way and has changed the terms of employment thus forcing the employee to quit.

Leung said the key idea here is whether or not working from home has always been a condition of their work or whether there’s a human rights basis that requires them to stay at home and work.

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“Some people, for example, have a compromised immune system and that’s why they weren’t able to work from the office. We still have COVID, so that may not change for those people at the moment,” he said.

Leung explained that offering the option to work from home is going to be more on a case-by-case basis unless legislation were to come in.

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“The main thing that I always tell both employers and employees is that it’s best that they talk about it – figure out what the concerns are on both sides – and see whether or not they can make remote work possible,” said Leung.

“And if an employer is trying to force an employee to go to work, then that might be a time to contact a lawyer and see whether or not they have a situation that requires them to be at home,” he added.

READ MORE: Does the option to work from home make for a better work-life balance?

In Nova Scotia, Zyanya Thorne, who works in customer service remotely for a company in Calgary, Alta., said that going back to the office would not suit her.

“I’m basically out in the country here, and so in order to get any in-person jobs, I would have to commute. And my husband does do that commute, but his hours are very unpredictable,” Thorne said, “and so trying to find something where we can drive together would be impossible.

“It doesn’t make sense for us to have a separate vehicle. And so for me, working from home has been a huge blessing because otherwise, I wouldn’t be able to have work right now,” she added.

Thorne said some of her co-workers have gone back to the office and she hears the stories behind why they didn’t want to go back.

“I definitely appreciate that it’s not an issue for me at this time. But I definitely think everybody has a valid reason for not wanting to be in the office,” she said.

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Thorne also said working from home has made a positive impact on her and her husband financially.

“(We don’t have) to worry about the transportation costs and the logistics of it,” she said.

For all these reasons, Thorne said she would like to see Canada legalize working from home.

An Ipsos poll released on May 6, showed that many Canadians want to continue working from home and were even willing to change jobs to find an employer that would let them.

Not everyone in Canada currently has the choice of working from home and some are fighting to make it happen.

With announcements from public health officials in federal, Ontario and Quebec jurisdictions confirming that the provinces are entering a seventh wave of COVID-19 infection, the Canadian Association of Professional Employees (CAPE) — the third-largest federal public service union in Canada — has made a request to the Treasury Board Secretariat that all return-to-office plans be immediately suspended until the situation improves.

“CAPE is concerned with the serious and unnecessary risk to the health and safety of our members being required to return to the workplace amidst this seventh wave. Hospitals simply cannot handle any unnecessary increases in infection rates,” said the union in a press release on July 12.

CAPE said that allowing its members to work remotely is the best approach right now to eliminate the risk of contracting COVID-19 in the workplace.

A workplace culture expert says employers can offer flexible work and make it part of the workplace “without needing to change a single law.”

“This seems like a story about flexible work, but it’s a story about culture … we can value people without needing to change a single law or even many of our policies internally,” said Sarah McVanel, chief recognition officer and founder of Greatness Magnified, a company that helps organizations retain top talent and combat burnout.

“Flexibility is not necessarily working from home or working from home part of the time. Flexibility is a much bigger conversation,” she added.

McVanel said she’s not sure if Canada can make working from home a legal right, but she sees many companies embracing the spirit.

“Many employers have decided to (offer flexible work arrangements) post-COVID-19 for a variety of reasons,” she said. “It’s because they saw benefits.”

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According to McVanel, some of these benefits include the financial perks of closing down some of their offices. They found new ways to have people work and collaborate together and have seen innovations and technological advances by having to find ways to communicate and do work.

“They found productivity gains. Not all employers feel that … and not everybody feels as comfortable having a remote, hybrid and in-person work environment too, so that’s part of the challenge. And I feel for employers. They’re trying to find a way through this,” said McVanel.

She acknowledged that there are industries and careers where working from home is not an option, such as the airline industry, but that doesn’t mean flexibility doesn’t exist there too.

“Employers still need to identify some other way, a cultural glue, like recognizing and valuing people for coming in,” McVanel said.