More workplaces in Canada are returning to full-time work. This is what this means to you

About a quarter of the workforce in Canada worked exclusively from home two years ago. But now, with more and more employers returning to in-person work, what does this mean for Canadians who have embraced remote work?

When COVID-19 hit Canada in early 2020, there was a big shift in the way we work: many offices closed their doors and workers abandoned their cubicles in favor of remote work to reduce the risk of transmission.

It was a mass exodus to remote work unlike anything seen before. According to Statistics CanadaOnly seven per cent of workers in Canada said they “normally” worked from home in 2016. This figure jumped to 24.3 per cent in May 2021 and remained there until early 2022.

But since then, workers have been gradually returning to the offices. By May 2022, the share of workers working exclusively from home had fallen to 22.4 percent, and then to 20.1 percent in May 2023.


As of November 2023StatCan data shows that only 12.6 percent of the workforce aged 15 to 69 continues to work exclusively from home.

Part of this shift has been due to an increase in hybrid work arrangements, in which workers work some hours at home and others outside the home. The number of workers on hybrid arrangements has more than tripled over the past two years, rising from 3.6 percent of workers to 11.7 percent in November.

Analyzing how, when and why to return to in-person work is a complicated prospect because of the way these remote arrangements began, said Jon Pinkus, an employment lawyer at Samfiru Tumarkin LLP.

“Whenever we talk about employee rights, it’s really a contract issue, right? Sometimes we talk about a written contract. Sometimes we talk about implied contract rights. And this has been, in many cases, unexplored territory, right? Because we’ve never had a situation where everyone has suddenly gone remote,” he told CTVNews.ca in a phone interview.

Generally, the way it has always worked is that if someone is hired as a remote worker and has been working remotely for several years, “that becomes a term of their employment,” he said. This is true even during the pandemic: If you were hired in a remote position, you cannot be forced to suddenly attend an office as a requirement of your employment.

But what about those whose jobs went remote only because of the pandemic?

All of the case law on remote work predates the pandemic, making it difficult to say with certainty what the legal precedent is.

“An employee who is now being asked to return to the office after working remotely for several years should consult with an attorney,” Pinkus said.

With 2024 around the corner, any employer that has gone remote during the pandemic and wants employees to return to the office against their wishes has lost the opportunity to easily do so, he added.

“The time to set the parameters was in 2020 and 2021, where it could be conveyed to employees watching, we may continue this until 2023, but ultimately it is a temporary arrangement, and we hope to bring them back.” as soon as circumstances allow,” he said.

Employers who have previously set these expectations can refer to them in case employees complain about returning to the office.

“If you have an employee who was hired in person, say in 2015, and then during the pandemic they were put on a remote arrangement and then in mid-2022 they were told to return to the office, it would be very difficult for that employee to say, ‘Well, now is a period of my employment that I can work remotely,'” Pinkus said.

But if employers didn’t set official expectations about returning to work from the start and simply allowed employees to continue working remotely from early 2020 until now, they will likely have a harder time imposing a sudden requirement to return to the office, he said. .

The World Health Organization lifted its COVID-19 state of emergency declaration in spring 2023, Pinkus noted, and if employees who went remote in 2020 were still working remotely after that point, “it’s starting to look like an indefinite agreement. “

“And once an employee is on an indefinite arrangement, whether they’re working at a certain location or working from home, they have the right to have that continue,” Pinkus said. “And if the employer says, ‘Well, now we don’t want you to work from home remotely anymore,’ that could be seen as a fundamental change that the employee might reject.”

Employers can still fire anyone they want, he added, but an employee who was fired in this situation could argue that the firing was without cause and that they are entitled to compensation.

“I believe the only solution available regarding employees who do not agree to return to the office is to notify them in advance,” he said. “And potentially significant advance notice of that change.”

Generally speaking, that notice should be the same as that person’s compensation rights, Pinkus explained.

“Basically, the employer would have to look at it as we fire this person, give them notice to work, and these will be the new terms,” ​​he said. “So you could say, ‘We’re going to require you to work from the office from now on, but we recognize that you are someone who is entitled to 12 months of severance pay, so it won’t be effective until this time next year.’ .’”

This would give the employee time to look for a new job where they could continue working remotely or make any necessary changes to support their return to in-person work.

WHAT IF I MOVED DURING THE PANDEMIC?

In the early years of the pandemic, a trend that came along with remote work was workers moving further and further away from the office, with some even moving to other provinces while continuing to work remotely for the same company.

If someone moved during the pandemic but an employer is trying to get employees back to work in person, a key piece of information would be whether the employer knew about the move, Pinkus said.

“If the employee simply moved without telling anyone, then the employer will not be responsible for it,” he said.

“But if the employer says, ‘Oh, okay, you’re moving to PEI, okay, you’re remote,’ and updates their system, they don’t make any plans or requirements to return by a certain date. date and they don’t set any parameters about it, then I think the employer has the responsibility and will now have to deal with that employee as a remote employee in the future. And if they fire that employee, they could do it, but they will have to pay compensation.”

DISABILITY RIGHTS IN A RETURN TO WORK SCENARIO

One of the benefits of the shift to more remote work was that it opened up more opportunities for people with disabilities.

In 2022, the percentage of people with disabilities who were employed increased to 21.3 percent, the highest since 2008 and more than two percentage points higher than in 2021. BNN Bloomberg reported earlier this year. The same year, the labor force participation rate increased three times as much for people with disabilities as for those without disabilities.

Some experts have expressed concern that the shift away from remote work will eliminate some of the opportunities that have opened up for people with disabilities.

The good news is that if an employee was hired as a remote employee and has disabilities that prevent them from working in person, employers would have a hard time justifying them now because they can’t come to the office.

Pinkus added that employees who do not have physical disabilities but cannot attend an office because they are immunocompromised or are at high risk for COVID-19 should still be able to point to this as a reason to remain remote if they have proper documentation.

“If COVID has introduced permanent risks to their health that can only be adequately mitigated by remote work, I think those employees would have a basis for saying, ‘I need this, here’s my doctor’s note confirming I need this and the doctor says that this is what it takes,’” Pinkus said.

“I think it’s going to be very difficult for an employer to reject that because they’re going to have to show that it puts what we call ‘undue hardship’ on that employee working from home.”

MOST OFFICE PERFORMANCES GO WITHOUT PROBLEMS, EMPLOYERS FIND COMPROMISES

Although the dynamic is slowly returning to more in-person work, Pinkus said he personally has not seen many cases of employees contesting the return to work, nor of employers looking at how to force employees to return.

In cases where the workforce prefers remote work, employers have largely reached agreements or simply allowed certain employees to remain remote.

“What I’ve seen for the most part is that employers have implemented hybrid arrangements or have continued with remote arrangements,” he said.

“Most employers and employees have reached some sort of balance on this issue. Although (conflict) has arisen here and there, it has not been common.”

According to StatCan, many workers still working remotely were parents with young children. As of November 2023, one in three parents with at least one child under the age of five worked exclusively from home or had hybrid arrangements.

Every work situation is different, Pinkus said, and all of these discussions about whether an employee can be required to return to the office, or whether employers can expect this from employees, depend on the communication that has taken place between all parties: what the contracts say. , what expectations were expressed, and how employees performed while remote.

“While everything we’ve talked about is a good rule of thumb and a good guide, ultimately anyone thinking about refusing to return to work should not do so before speaking with an attorney to understand what their rights are. Pinkus said.

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