Employers can make you come to the office during the pandemic. But should they?
Bosses weighing public health guidance, business needs and employee anxiety
For Sam Febbraro, having hundreds of employees work from home during the pandemic began with trusting them.
As the executive vice president of Investment Planning Counsel, a Mississauga-based financial planning firm, Febbraro helps lead 380 employees and corporate advisers, while working with a staff of more than 750 financial advisers across the country, all with the ability to work remotely.
While he describes the past nine months as an emotional "rollercoaster," Febbraro says his company's productivity has been unaffected.
"The core part of our business has not missed a beat," he said in an interview.
Financial advisers with the company have been embracing technology, Febbraro says, along with finding creative ways to do business, such as driveway meetings with clients.
At the same time, he says company leadership remains focused on advisers' results, "as opposed to the number of hours you work."
It's a success story in the great shift to remote work brought on by the COVID-19 pandemic. But not all employers are willing or able to embrace that shift.
And, legally, they don't have to.
While the risks front-line workers are facing rightly get the attention of the media and politicians, a quieter struggle is playing out in white-collar workplaces. In fields where working from home is possible, it isn't always happening, even if employees would prefer it.
Ontario's Workplace Standards Act does not regulate working from home, but the government does recommend it.
A statement to CBC News from the Ministry of Labour says it "supports the message of having the people of Ontario working from home or remotely, whenever possible."
Still, many workplaces are permitted to remain open. And if health and safety protocols are being followed, employees are required to come to work.
"The employer can say, quite legally, 'Come to work or you're fired for cause for abandoning your job,'" employment lawyer Howard Levitt said in an interview.
Levitt and other employment lawyers tell CBC News that, throughout the pandemic, they have been repeatedly contacted by employers and employees at odds over requests to work from home.
However, Levitt says in the vast majority of these cases, employers who want their staff in the office have been successful at getting their wish.
Levitt says there's nothing in the law to compel employers to facilitate working from home, so long as regulations such as physical distancing and cleaning protocol are being met.
This sets up a potential for conflict, as an employee may feel unsafe due to the pandemic in general, but their specific workplace is deemed legally safe to attend.
"They're legitimately worried because they've been told by everybody how unsafe it is out there. They have genuine anxiety. But the law does not accommodate anxiety, it accommodates safety," Levitt said.
Managers should be flexible, expert says
Fears about the pandemic may not tip the legal scales in an employee's favour, but it should carry more weight for bosses trying to keep their staff happy and productive, according to David Zweig, a professor of organizational behaviour at the University of Toronto's Rotman School of Management.
Zweig says even if a workplace is safe, employers risk alienating their staff by ignoring their concerns, and should be as flexible as possible.
"It really comes down to a manager asking himself or herself: 'Why do I believe I need this employee next to me in the office?' Because if you trust your employee, and your employee has demonstrated that they're working effectively from home, then there really should be no issue with continuing with that arrangement until it's safe for everyone to go back into the workplace," Zweig said.
Zweig says bosses may feel some employees need to be in the office in order to ensure their productivity. And he says in these cases, those employees should be dealt with independently.
Zweig says employers and workers can reach compromises, such as partial work from home schedules or digital check-ins, before workplace leaders bring in a blanket policy for the entire office.
Whatever an employer chooses, Zweig says workplace leaders need to back up their policies with sound reasoning.
"Whenever you enact a decision as a leader you need to make sure there's a lot of justification, evidence and rationale for that decision so people understand it," he said.
Advice for employees
If an employee feels the workplace is unsafe and cannot reach a solution with the employer, Ontario's Ministry of Labour will investigate.
Levitt says, in his experience, if an investigator finds violations, the situation is most often resolved by the employer bringing the workplace up to code.
Ben Millard, another Toronto-based employment lawyer, agrees that a workplace safety violation complaint is not a very fruitful legal avenue for employees who want to work from home.
He says many of the situations people contact him about are ultimately resolved informally between the employer and employee.
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But Millard says another option for employees who believe they have a legitimate concern about going into the office —such as a medical condition or caring for a vulnerable person — is a challenge of the Ontario Human Rights Code.
"If you have a medical condition and a letter from your doctor, and working from home is a reasonable accommodation, the employer has a duty to consider that," Millard said in an interview.
"We've seen that approach can be successful."