Why your options may be limited if your employer wants you back in the workplace
Geoff Nixon | CBC News | Posted: Monday, July 4th, 2022 8:00 AM | Last Updated: July 4th
Workplace experts also encourage both sides to discuss what's possible as pandemic arrangements shift
Image | TTC Mask Mandate Lifts
Caption: Workplace arrangements are changing with pandemic restrictions falling. Legal, HR and other experts encourage keeping communication open when discussing return-to-work plans, but employees may not have much choice unless there are specific circumstances. (Evan Mitsui/CBC)
While employers can wind down temporary measures, they should also consider how the work environment has changed since COVID-19 took hold early in 2020, that flexible arrangements have proved to be possible, and how employees may feel about going back to in-person work, experts in Canada say.
"Employees have proven — at least in their own minds — that they are as productive, if not more productive, working from home," said Janet Candido, a Toronto-based human resources (HR) consultant.
"So, that's where the pushback is."
Agreements are agreements
Nadia Zaman, an employment lawyer with Rudner Law in Markham, Ont., said she and her colleagues have fielded an increasing number of return-to-workplace questions in recent months.
Image | Nadia Zaman, employment lawyer with Rudner Law
Caption: Employment lawyer Nadia Zaman says that, generally, 'employees do not have the right to choose where they do their jobs unless they already had that right' before the pandemic. (Submitted by Nadia Zaman)
"Employers can generally dictate whether the employee can work from home or must return to the office — whether fully or on a hybrid model — unless there was an agreement to the contrary," Zaman said in an interview.
There are some exceptions, mostly limited to legitimate needs for accommodation or concrete concerns about safety.
But Zaman said "employees do not have the right to choose where they work unless they already had that right" prior to the pandemic.
A changing work world
The prolonged stretch of time employees have spent working at home is part of a wider context of change.
Matthew Fisher, an employment lawyer and partner at the Toronto-based Lecker & Associates, said many employees have learned "there can be a different way, that there can be flexibility, that there can be remote work."
WATCH | What will a return to the workplace look like?:
Media Video | (not applicable) : Future of work uncertain for Canadians
Caption: Nita Chhinzer, Associate Professor for human resources and business consulting at the University of Guelph and Matthew Fisher, employment lawyer at Lecker and Associates Law, join Canada Tonight’s host, Ginella Massa, to talk about how the pandemic caused work culture to shift and what the future of work might look like.
He predicts some employees will point to the success of alternative arrangements when employers ask them to get back to in-person work — and that may be part of eventual legal challenges alleging constructive dismissal, when an employee feels they've been forced to leave the job because of job requirements.
In an interview with CBC's Canada Tonight, Fisher said employees can tell their bosses: "You have broken a very fundamental aspect of our employment relationship that I do the best I can, but I have a level of flexibility that I can work remotely."
Zaman said it's more likely that will happen as such arrangements continue, particularly if the employer has not clearly communicated that alternative working arrangements are temporary.
"One way that employers can make sure that they are protecting themselves ... is to clearly communicate to employees that remote work is only continuing as an interim measure due to the pandemic and its after-effects, and that workers will be expected to return to the office at some point," said Zaman.
Candido, founder and principal of an HR consulting group, said she advises clients to ensure this messaging gets repeated "a couple of times a year," for the very reason Zaman outlined.
Persuasion can be helpful
Beyond any legal context, employers have reason to convey their plans to employees — if only to drive home the fact that change is coming, experts said.
Image | Winny Shen, associate professor of organization studies at York University
Caption: Winny Shen of York University's Schulich School of Business encourages organizations to explain to employees why they want them back in the office — even if that's not what some of them want to hear. (Submitted by Winny Shen)
Winny Shen, an associate professor of organization studies at York University's Schulich School of Business in Toronto, recommends that organizations share with staff why workplace requirements are changing.
"I think sometimes organizations just say, 'We want everyone back in the office,' but they're not very explicit on why ... they feel it's a compelling need or maybe who they really think needs to be back at the office."
That communication also gives employees a chance to assess the information and possibly provide feedback, which could include employees highlighting "some of the things that the organization hasn't thought of."
Look to negotiation
Where there are divides between what employees want and what their employers demand, both sides should look at what's possible under the circumstances, said Candido.
WATCH | Demand for flexibility, even in returning to the office:
Media Video | The National : Workers want flexibility with return-to-office plans
Caption: With pandemic restrictions easing across Canada, companies are preparing to welcome employees back into the office. But many are pushing back and asking for flexible work arrangements, while others are looking forward to going into the office again.
"Don't draw a line in the sand — just try and negotiate," said Candido. For example, employees can bring up the idea of easing their way back into the workplace, she said, and employers should make a point of hearing them out.
"Employers shouldn't dismiss employee concerns and probably won't if they're presented in more of a co-operative manner."