Employees only have the right to refuse to return if their refusal is based upon a legal human rights accommodation

Imagine sitting on a sandy beach by the water responding to client emails. Many workers took the opportunity to turn this dream into a reality.

Even one of the authors of this column has to confess to the occasional meeting and some transcript readings beachfront at his Atlantic and Pacific homes in Key Biscayne and Nicaragua.

Employees have viewed the pandemic as an opportunity for change, be that relocating to move closer to family or reside in their dream city. The appeal of no longer being stuck in a typical work routine has pushed employees to relocate. But at what cost?

In 2020 and the majority of 2021, the pandemic had no “end” in sight. People assumed that remote work would be the new norm and a return to the office an anomaly. The change in workspaces in 2022 has revealed that a welcome back to the office is occurring and at an increasing rate. Indeed, Elon Musk just announced that all Tesla employees must return to the office or be fired for abandonment. Even on our firm’s Saturday Zoom call, for the first time in several years, virtually everyone was agreeing on the advantages for mentoring, loyalty, office efficiency and productivity to have everyone working together again.

Up until now, those who spoke of the advantages of in-office work appeared to be voices in the wilderness. And our firm certainly was, in June 2020, when we required everyone to return to the office (and, to a person, they all admitted to enjoying it more than the sterility of their one-bedroom condos at a time when it was difficult to even leave their homes).

The Toronto police force is permitting unvaccinated employees to return and major banks and law firms are requiring their employees to return.

With the mask mandate lifted, federal and provincial governments and many other private businesses too have announced plans to resume in-person workplace policies for many of their employees. What about those who do not wish to return?

When an employee has relocated and a return to the workplace demanded, to what extent must employers accommodate an employee?

The short answer, employers must accommodate relocations only if they had consented to the relocation on an indefinite basis.

Otherwise, employees only have the right to refuse to return to the office if — the big catch here — their refusal is based upon a legal human rights accommodation.

What few circumstances are those? Examples include child-care or elder-care obligations which cannot be otherwise accommodated, pre-existing health conditions and a lack of safety measures in the workplace.

For example, Employee A has a pre-existing health condition making it near impossible to return to the office; Employee B is the primary caregiver and must attend to a family member’s health as a result of the pandemic; and Employee C moved to California in 2020 while working remotely for a company based in Toronto. The first two scenarios may require a need for accommodation with respect to the workplace location. The last scenario does not. With respect to the first, the employer can provide working conditions in the office which are objectively safe for that employee and, respecting the second, the employer can work with the employer to find alternate care arrangements, at the employee’s expense. If they find such arrangements, the employee has no choice but to accept them.

The fact that you worked equally or with greater efficiency from home creates no right to do so legally, when an employer wants you back. The location of your job is determined by the employer.

For employers

The right to require employees to return may change if an employer consents to the employee’s relocation. The employer would have had to make clear that that relocation was not indefinite but only for the period of COVID when the employee moved. If they did so, they can require the employee to return and provide them sufficient time to do so — i.e. a month or so.

For employees

The recourse for relocated employees who wish to argue against their return to the office is limited.

A takeaway? Always ask your employer for consent prior to relocating.

Employers who consent to an employee’s relocation must be prepared with remote work policies which address the specific parameters of the employee’s relocation. For example, some employers may only permit relocation on the condition that the employee remains within a specified kilometre range or that they have the right to require them to return to the office on, say, one month’s notice. This condition must be defined in an agreement between the policies and it is advisable to have written policies covering this as an additional protective buttress.

A well-drafted remote work policy is a surefire way to protect employers and employees from consequences, such as the debate over relocation, which may arise in the future.

The right to recall employees back to the office remains a heated topic for employees and employers alike as the liabilities and responsibilities change significantly when the work location switches from in-person to remote.

While a transition back to normalcy is now occurring and more employers are expecting employees to return to the office, the best way to diminish unwarranted “I moved away” comments is to require those who relocated without consent to show up to work or else risk job abandonment.