So you're going back to the office? Your burning questions answered

With the gradual lifting of public health restrictions across Canada, the possibility of heading back to work in person may be top of mind for employers and employees — if they haven't started re-integrating already.

Can you say no? How much negotiation power do you have? An employment lawyer tackles your questions

Whether you want a hybrid model, or a permanent in-person or work-from-home arrangement, these are conversations you will likely have with your employer in the coming weeks and months. (Evan Mitsui/CBC)

With the gradual lifting of public health restrictions across Canada, the possibility of heading back to work in person may be top of mind for employers and employees — if they haven't started re-integrating already.

This month, federal public servants got the green light for a gradual return, and various sectors across Ontario already started calling their employees back.

But after two years of working remotely, some may wonder — is this necessary? What are my negotiating powers and rights? And what about health and safety? 

"My issue is more about how much time I will now be giving up out of my work day [commuting]," said Miranda Gray, who used to commute from Orléans to Gatineau, Que., for work.

She says the rising cost of OC Transpo and STO transit passes, along with the lack of reliability of public transportation is one of her major concerns about going back to work in person.

"Now that I've had that time to myself for two years, it's really hard to give up three hours."

Working from home hasn't meant destroying productivity.- Malini Vijaykumar, Employment lawyer

Meanwhile, Louise Lapointe is enjoying being back at work on a hybrid basis.

"I love being at home. You know, home is my little haven and [remote work] just has kind of taken the joy out of it. It's now my workplace," said Lapointe, an Ottawa resident. She says people should focus on the positives of being in the office in person again.

"There's so much emphasis on the negative and the resistance of change ... It's important to find that balance between the two worlds."

We put some questions to employment experts about working arrangements as we live with COVID-19.

How much negotiating power do employees have? 

Whether you want a hybrid model, or a permanent work-from-home arrangement, this might be something many are nervous about bringing up to their bosses. 

Malini Vijaykumar, an employment lawyer with Nelligan Law, believes employees do have some negotiating power when it comes to work-from-home arrangements. 

"Working from home hasn't meant destroying productivity," Vijaykumar reminds employers.

"It's a word of caution to employers that, you know, don't bring people back just for the sake of bringing them back. Really think about why you're doing this." 

She says workers, especially those in industries that may have a hard time with attracting and retaining workers, have some negotiating power moving forward.

Do employees have a right to say "no"?

It depends on why and your situation, says Vijaykumar.

Someone who hasn't worked in person at all, or perhaps was hired on a remote-working basis during the pandemic, could have a case.

"Then all of a sudden your boss, who wants bums on seats, is saying, 'No, you have to start coming in," she explained.

"In that situation, that boss may face a risk of a complaint." 

A security guard checks the temperature of an employee inside an office building in Shanghai in 2020. Some employers may be able to justify keeping public health measures around, while others not so much. (Noel Celis/AFP/Getty Images)

Employees may argue that they were hired on terms of remote work, and they don't consent to a change in work arrangement.

Others may have a difficult time with finding child-care arrangements — and may say employers are now failing to accommodate. 

"If it's been possible to accommodate them by remote work for the last two years ... [employers] are going to have a really hard time justifying why they're suddenly not doing that anymore," Vijaykumar said.

Stephen Harrington, a partner at Deloitte Canada who authored a recent report on the policy implications of hybrid models, says hybrid and remote models don't work in every industry, but there are sectors that could shift to this policy as restrictions continue to ease.

"It's not going to be easy because that way of working was in place from 1926 to now when we first thought of the five-day work week, we started piling people into offices. That's a really long habit to break," Harrington said.

Who gets the final say? 

These disputes could end up in court, says Vijaykumar.

Complaints for constructive dismissal — when an employer has unilaterally broken a worker's contract like significantly changing details of their job or environment — take a long time, however, to make it through the system. 

Human rights complaints can move a little faster. 

Return to office complaints are "far too new," but human rights decisions about work arrangements during the pandemic have been ongoing the past couple of years.

"We've seen [Human Rights Tribunal of Ontario] decisions over the last couple of years, basically cautioning employers about being too inflexible ... You still have this duty to accommodate," explained Vijaykumar.

Are employers obligated to provide you with a permanent desk or office space?

Vijaykumar says it's likely many employers may have downsized during the pandemic, and won't have the same space and office arrangements as pre-COVID.

She says employees should be flexible about having a permanent desk or space in their office, especially if they're allowed to work a hybrid model. Office spaces and commercial leases are expensive, she adds.

"For people who don't want to come in all that often, you're not going to get to keep your own office with your name on the door," she said. "We're going to have to do some office-sharing."

She believes that's a reasonable compromise between an employer and worker to make.

What happens if your employer wants to enforce public health rules?

Employers still have a general obligation to provide a healthy and safe workplace, says Vijaykumar.

However, whether they can enforce their own public health rules — like masking or vaccine passports — when the province has lifted those mandates is a grey area.

It really depends on the kind of workplace it is, she says. For instance, health-care settings have precedence in the past where employers asked workers to wear masks, during flu season.

"I think in those kinds of workplaces that involve vulnerable populations, that requirement could be legally upheld," she said.

In other workplaces, like offices where the risk of transmission or serious illness has gone down, the law might hold the other way, Vijaykumar said.

With files from Ottawa Morning