When law firm Levitt Sheikh recalled their employees to the office in June 2020, there was initially some resistance. It was early in the pandemic, and many law firms in the Toronto area were still functioning remotely. But in the end, many employees not only returned to the office, but also liked the return of in-person interactions and workflow. Because their return to office happened early on, Levitt Sheikh didn’t have to worry about an issue that many employers currently face: employees who have moved far away from the workplace during the pandemic.
“It’s up to the employer: If the employer wants them back at work, they better go back or they’re going to lose their jobs,” said Howard Levitt, an attorney with Levitt Sheikh in Toronto. “If you don’t come back, you’ve resigned.”
Possible Mandatory Return
As more and more Canadian companies recall their employees to the workplace, there is growing tension between the workers who moved far away while working remotely and the employers that want them to return to the office. The circumstances of the pandemic allowed for remote work in situations that were not initially envisioned as remote-work jobs, and now that pandemic restrictions have eased, both employers and employees have to navigate a return to in-person work.
“There are more employers that were able to have room to allow for remote work during the pandemic, who are now asking employees to return to a physical workspace, than was the case during most of the last two years,” said Catherine Coulter, counsel at Dentons in Ottawa.
“We’re at a tipping point right now,” Levitt said. “Everyone has been legally able to work from the offices for a very long time. What I recommend to employer clients is either order everybody back now, or if you’re prepared to let them continue working from home, make them sign contracts, agreeing to return on one month’s notice at any time in the future; then they’ve got nothing to worry about.”
How to Remain Remote
There are a few specific circumstances that employees can claim to avoid returning to the office, but they are limited.
“The first instance would be where the employee has some sort of a disability that precludes them from coming into work, due to COVID-related concerns,” said Coulter, noting that this includes the employee being immunocompromised and more at risk if they were to catch COVID-19. However, the employee might be required to prove this to their employer with documentation from a doctor or from a doctor of the company’s choosing.
“The employer can say, ‘I don’t believe you, I don’t believe your doctor, I want you to see our doctor, we have a specialist,’ ” Levitt said. “Then it’ll be a challenge to the doctors before the courtroom, to see which doctor had more-credible evidence of whether this person genuinely cannot come and work at the office.”
The second scenario that would allow an employee to remain remote is if the employee is the main caretaker for a defined immunocompromised family member. “In that particular case, the employee is going to need to be able to demonstrate that there is a legitimate reason why they need to care for the immediate family member,” Coulter said.
Even then, there are ways the employer can compel the employee to return to the office. “The employer can say, ‘Well, let’s try and find day care, [or] let’s try and find some other form of care,’ ” Levitt said. “And if they can find that care for the employee, the employee has to take it. They can’t say, ‘No, I’d rather look after them myself.’ They don’t have that option.”
Another option is that an employee can try to prove that working remotely was a term of their employment. “For example, before COVID, some people worked from home,” Levitt said. “And I would have cases in which employers said, ‘This isn’t working for me, come back to the office,’ and the employee would successfully sue for constructive dismissal, because that was a term of their employment.”
What Options Are There?
If an employee has moved out of the province or out of the country during the pandemic, they should have broached that with their employer at the time, as there are few options to remain away if the employer wants to call them back to the office at this point in the pandemic.
“Hopefully that’s in writing, or they at least e-mailed their employer confirming that; that would have been an option. That’s what they should have done prudently at the time,” Levitt said. “If that wasn’t the deal, the employer only has to allow them enough reasonable time to move back to Canada.”
There are also potential tax liabilities for companies if their employees have relocated. “If you permanently move outside of the jurisdiction, your employment contract is no longer valid. Employees are employed in the jurisdiction in which they perform most of their services,” Coulter said. So an employee who moved to Quebec from Ontario would still be under an Ontario contract and taxed as an Ontario employee, which can cause problems. Employees moving between countries can cause even more problems for companies, which might appear in those cases to have business in the countries where their employees have relocated.
“It is in fact a very big deal when you change countries. And it’s somewhat of a big deal when you change provinces,” Coulter said. “And so at the end of the day, when an employee has been hired to work in a certain jurisdiction, the employer has the ability to demand that the employee return to that jurisdiction.”
Katie Nadworny is a freelance writer in Istanbul.