Howard Levitt: It’s time to revisit workplace practices and laws as people return to work

Laws that may have been tossed aside in the panic of lockdown are now back in full force

If an employer a year ago had sent you home indefinitely without pay when you had done absolutely nothing wrong, or decided to reduce your wages or cut your wages by 40 per cent instead of providing your annual raise, most employees would have indignantly rushed to a lawyer’s office demanding retribution — and they would have obtained it.

What a difference a few months make. Employers from coast to coast to coast have been laying off or reducing wages and hours with apparent impunity. The law hasn’t changed, and those reductions or layoffs are still — in almost every case — constructive dismissals. But with the shock therapy of COVID-19, when “full employment” quickly appeared to transform into “no employment,” most employees, fearful of permanent unemployment, forfeited their legal right to sue for constructive dismissal and sheepishly accepted the cutbacks.

My office’s phone lines, once accustomed to calls as to whether a case was worth 12, 18 or 24 months of earnings (that is, tens of thousands to millions of dollars), were instead filled with inquiries as to whether someone qualified for the $500-a-week Canada Emergency Response Benefit (CERB). Panic roiled the employment market and employers (with their own existential difficulties) were the beneficiaries of employee fear and acquiescence.

But cracks have now opened. The economy is less desultory, workplaces are reopening and employees are less fearful. Just as investment opportunities are always ripest when affairs go from bad to less bad, employees are reconsidering their options. Here are a few of them.

A second chance to sue

Employees initially could have rejected layoffs or wage reductions and claimed constructive dismissal. But once they accepted it without protest and a couple of months went by, it legally became a term of their employment and they could not change their minds. At least not until others were recalled and they were not, a situation that is now occurring.

Many employers used the current crisis to lay off troublesome or less competent employees, whom they had no intention of recalling. Now that others are being called back in, those employees’ opportunity to sue for wrongful dismissal has been revived and, having missed their first chance — and not wanting to be at the back of the litigation line for that workplace — many are taking legal action. The calls to my office’s phone lines echo pre-pandemic times.

Find other employment

Many women, in particular, are unable to attend work because schools and daycares are closed, accepting fewer children or requiring that a parent remain home to assist in Zoom learning lessons. Employers must accommodate that and dismissing such an employee for refusing to attend work is a human rights violation as well as a wrongful dismissal.

It’s also important to note that women have been disproportionately affected by COVID-19. One reason is childcare, or lack thereof. But it’s also the case that layoffs have disproportionately affected female-dominated occupations. Years of progress have been, at least temporarily, rolled back.

Other employees may have compromised immune systems and fear leaving their homes, let alone attend work. Although the law does not accommodate anxiety, as opposed to a genuine safety risk, most employers are accommodating those employees’ requests. There are also employees happy to stay on CERB rather than return to work for not much more money.

The upshot is that a job is much easier for some to get than anyone expected.

Revisit the work-from-home experiment

Remote work was not faring very well prior to the pandemic. Companies such as Bank of America Corp., AT&T Inc., Reddit and Yahoo had all been moving away from remote work over the past several years. The attitude before COVID was best illustrated by Patrick Pichette, the former chief financial officer at Google LLC, who, when asked “How many people telecommute at Google?” answered, “As few as possible.”

But by forcing everyone out of the office, COVID quickly changed all that. Employees and even employers initially found that they quite enjoyed these new arrangements and polls suggested they expected it to continue permanently.

Not so long ago, companies such as Facebook Inc. and Twitter Inc. bragged they would make remote work permanent and give up their physical offices. It seemed idyllic: lower office-space costs, no wasted commuting time, better work-life balance and happier employees.

But companies are now less certain. Remote work often means less teamwork, less ability to supervise and reduces the spontaneous office exchanges that, in turn, permit new ideas to erupt. Employers are finding it more difficult to find workers when they need them. Employees are finding being tethered to Zoom constraining.

There is a more serious problem for both workers and the economy: the unintended consequence of higher unemployment and a gutted tax base.

“When you hire remotely you can get the best talent around and not just the best talent that wants to live in your city,” John Sullivan, a professor at San Francisco State University, has pointed out.

If Canadian employers can hire the best and lowest-cost employees from around the globe, what will that do to our tax base and unemployment rate?

As Chip Cutter of the Wall Street Journal put it, “As the work-from-home experiment stretches on, some cracks are starting to emerge. Projects take longer. Training is tougher. Hiring and integrating new employees, more complicated. Some employers say their workers appear less connected and bosses fear that younger professionals aren’t developing at the same rate as they would in offices, absorbing how colleagues do their jobs.”

The upshot is that employers, in particular, are finding remote work less attractive and ordering reluctant employees back to their workplaces. This, to me, is no surprise.

But make no mistake as to the law. If the workplace is not objectively unsafe, employees must return, regardless of how productive they believe (or even prove) they have been at home. And if they refuse to return, that is cause for their discharge and the termination of any CERB or Employment Insurance benefits.

Have a question about employment law during COVID-19? Write to me at levitt@levittllp.com

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.