The CEOs at top tech companies have received attention over their policies allowing employees to work from home. While some companies insist that working from home motivates people to work responsibly, quickly and with high quality, others prefer their employees to attend at the office. The reality is that each company is unique, and the decision to continue or cancel alternate work arrangements depends on a number of considerations. A necessary and critical consideration in making this decision is the employer’s legal obligation to continue such arrangements.
A Necessary Consideration
With the exception of an employer’s duty to accommodate under human rights legislation, employers are not required to allow employees to work from home. However, once an arrangement to do so is in place, legal issues arise that may hinder an employer’s ability to recall its employees back to the workplace.
If an employee’s request to work from home is related to a human rights need — such as to accommodate a disability or unique childcare obligations — an employer may be forced to accommodate this request. For example, an Ontario human rights tribunal recently said that it was discriminatory to deny an employee’s request to work from home to care for his ailing parent.
However, the obligation to allow an employee to work from home, even in human rights situations, is not indefinite. The obligation exists for the duration of the need and so long as it doesn’t constitute undue hardship on the employer’s part. So, in accommodation situations, the employer can only consider recalling an employee back to the workplace when the employee’s need to work from home is no longer present or circumstances change such that the arrangement becomes an undue hardship.
When human rights needs are not at play, employers still do not have free reign. Prior to recalling employees back to the workplace and ending work-from-home arrangements, an employer must consider its rights and obligations under the employment contract. The contract may explicitly permit the employee to work from home, or, if the employee has been working at home for many years, the arrangement may no longer be considered temporary and may instead have become an implied term of the employment relationship. An employer in this situation should provide reasonable notice of its decision to end the arrangement. Otherwise, the employee could have a claim for constructive dismissal and be entitled to reasonable notice damages.
Unionized Work Environments
In a unionized environment, an employer must determine its obligations under the collective agreement before recalling employees back to the workplace. In addition, an employer must consider the collective agreement in light of its current and past practices. For example, if the collective agreement required employees to obtain prior approval before working from home, an employer cannot suddenly change its practice of not requiring this prior approval if it has consistently disregarded this prerequisite in the past. If an employer wishes to enforce a provision that it has not enforced for some time, at the next bargaining round it must place the union on notice that it intends to enforce the provision.
Recommendations for Employers
If an employer wants to maintain its right to recall employees back to work and cancel work-from-home arrangements, it should take the following steps:
- document all work-from-home or other alternate work arrangements;
- include a provision in the employment or work-from-home contract which provides the employer with the discretion to cancel alternate work arrangements;
- set out geographic limits in the employment contract defining where the employees’ homes can be located (e.g., within a certain distance from the head office);
- provide employees with sufficient notice of any change in alternate work arrangements; and
- in a unionized work environment, include a provision in the collective agreement which permits the employer to cancel alternate work arrangements, at its discretion.
Keeping these steps in mind, employers should be able to give themselves the flexibility to end employees’ flexible work arrangements.