'In the United States, where employment is largely at will, companies have greater freedom to unilaterally mandate a return to work'
Amazon is doing it, and so is Dell Technologies — mandating that employees return to the office five days per week.
“Working remotely should be the exception rather than routine,” said a Dell memo, adding that company data shows "sales teams are more productive when onsite” and the office provides a collaborative environment.
Prior to the memo, Dell had been asking employees to report to the office three days a week. Similarly, Amazon’s new mandate, taking effect in January 2025, will end the hybrid work arrangement implemented in May 2023.
While it may sound simple on paper, there are several legal considerations for Canadian employers pushing for a return to the office, say two employment lawyers speaking with Canadian HR Reporter.
What does the contract say?
Pre-COVID, most people would have a contract that says they’re going to work at a certain location from Monday to Friday, for certain hours, says Neena Gupta, a partner at Gowling in Waterloo, Ont.
During the pandemic, of course, remote work became widespread, but now with companies mandating a return to in-office work, those contracts are in the spotlight.
And employers with clear contract clauses regarding in-office work are better positioned legally, she says.
"Companies that had clauses in which the default is coming into the office five days a week are in a much better legal position to say, ‘We are mandating a return to normal.’"
This legal tension is exacerbated by differences between Canadian and U.S. labour laws, according to Gupta.
"In the United States, where employment is largely at will, companies have greater freedom to unilaterally mandate a return to work," she says.
"In Canada and much of Europe... employees have significant rights protecting them against unilateral changes, [so] you will see that there will be pushback. And the success of that pushback will really depend, honestly, on… whether there are any express terms about where people are going to work, or whether there are any implied terms because of the course of conduct of both parties.”
Express and implied terms in employment contracts
In assessing the legalities of back-to-the-office mandates, the typical starting point is the employment agreement, says Jeffrey Buchan, associate at Levitt in Toronto.
"Some of them were signed on during COVID, which may look a little different from before."
However, even with flexible agreements that allow people to work from home, employers may retain significant discretion, he says.
"If it does include that language — that the employer does have a right to call you back or to change the working conditions in that regard — then typically they will be able to call the employee back.”
The concept of implied terms can complicate the situation, says Buchan. During the pandemic, many employees were allowed to work remotely because of government mandates, and in some cases, employers may not have immediately asked employees to return when the mandates were lifted.
"If the employer doesn't raise an issue... and lets them continue to work, doesn't fuss about it, doesn't email them saying… 'We expect you back,' then they can be seen to have condoned them working from home, to the point where it can become an implied term of their agreement.”
Navigating constructive dismissal claims
If remote work becomes an implied term, changing it unilaterally could open the door to legal claims, he says.
"Trying to change that implied term can lead to constructive dismissal claims — and sometimes successful ones,” which means the employer “changed a fundamental term of the employee’s agreement.”
Employers without such explicit terms face more difficulty in enforcing these mandates, says Gupta.
"For those companies who are trying to say, ‘No, you need to come back on a full-time basis’ or a different basis, you can be assured that lawyers who represent employees will take the position that ‘This is a constructive dismissal. This is a material term, and you're unilaterally changing it, to the detriment of the employee.’”
As a result, the employee may resign and seek damages, she says.
Giving employees plenty of notice
For employers that allowed remote work without clearly communicating expectations for returning to the office, Buchan recommends issuing notice as soon as possible.
"As soon as the safety concerns subside, it’s best to… communicate that ‘We do want you back in office.’”
Providing adequate notice of the return to the office is key, and should be similar to what would be required for termination, he says.
"The best way to do this is to... take your longest-tenured employee and determine how much notice… they would need. [That] should be given to any employee who’s being recalled.”
The logic is that this operates as working notice. So, the employer expects the employee back at the office by a certain date, and if they don’t return, it’s considered a resignation or job abandonment, says Buchan.
“If they don't like the change, they can start looking for a new job during that working notice, or they have notice of the change.”
By giving employees adequate notice, employers can mitigate the risk of constructive dismissal claims, he says.
"If they still want to bring a constructive dismissal claim, they’ll be in a far less strong position to do so as the employee."
And it’s important to be consistent across employees to avoid claims of unfair treatment, says Buchan.
" You can’t say, ‘Hey, this employee gets four months of notice, this employee gets eight months’… it will lead to trouble.”
Distant employees returning to office
The issue becomes can also be complex when considering the living situations of employees, many of whom relocated during the pandemic to more affordable areas.
"We know people have moved to places where they can afford to buy a house," says Gupta. "So, these types of unilateral changes can mean that they're going to have to reconsider where they live. That's a huge change in their personal circumstances and… I believe the Canadian courts will really be thoughtful, careful about how they enforce those return-to-work mandates.”
To address these challenges and avoid legal pitfalls, she advises employers to provide significant notice and a gradual transition back to the office.
“Give people time to adjust if you're going to do it; give people notice, lots of notice, so that they can make arrangements in their lives,” she says. “If you're going to say, ‘In eight weeks' time, come and work five days a week in the office,’ you're getting a lot of pushback."
Requests for accommodation and family status
Requests for accommodations, particularly those related to family status, are another legal challenge employers face when implementing return-to-office mandates.
"We've seen a lot of claims for accommodation on the basis of child care, elder care, when there's a member of the family that is medically very vulnerable," says Gupta.
However, she emphasizes there is no “magic wand” and the courts do not typically grant accommodations based on employee preference.
“It pretty well has to be ‘It is necessary for me to work from home five days a week, because there is no other realistic way of managing my necessary childcare responsibility.’”
Buchan says that employees must demonstrate that they’ve exhausted all reasonable options for meeting their family obligations before requesting accommodations.
"The employer does have a right to know what efforts you’ve made to [find alternatives], as opposed to just taking your report and saying, ‘Yeah, okay, you can stay [home] up five days a week because you told me you have a young kid,”” he says.
“And building on that, an employer only has an obligation to accommodate an employee up to undue hardship.”
Medical conditions may also play a significant role in requests for remote work, says Gupta.
"I have seen… very strong cases for requests for remote work when people have been quite frail medically, so that they can do certain kinds of work from home," she says, noting that courts tend to be sympathetic to such cases, especially when the employee is capable of fulfilling their job duties from home but struggles with the physical demands of commuting.
Consistent policy enforcement and discrimination claims
Another issue that employers must navigate is the consistent application of return-to-office policies. Special deals for management or informal, verbal agreements can lead to complaints of favouritism or even legal claims of discrimination.
"It is important to have a principled and consistent approach to avoid complaints of preferential treatment," Gupta says.
Allowing one employee to work remotely while denying the same option to another could create perceptions of discrimination, particularly if one employee belongs to a protected category, she says.
"You can see how the perception of discrimination could be created when there are not well-understood rules and uneven enforcement."
Buchan agrees that favouring certain employees without a clear basis could lead to significant legal consequences, such as a constructive dismissal claim.
"If the conduct of the employer is egregious, or it’s clear that it’s clear favouritism... that can lead to fairly significant additional damages outside of just the constructive dismissal and severance."
Verbal agreements, where managers informally allow employees to work from home, are another potential risk. For employers, Buchan strongly recommends formalizing any agreements in writing to avoid future disputes.
"I would recommend not doing them… it is only going to come back to bite you."
Unionized workers and collective agreements
Also a consideration? Unionized employees, as the terms of their collective agreement will typically govern return-to-office mandates.
"More specifically, there’s usually a section on management rights in there," Buchan says. "If management goes above and beyond them, then that’s going to be a grievance."
However, not all aspects of human rights or accommodation requests may be covered by the collective agreement, he says.
"If the employer isn’t abiding by an accommodation need... there is an aspect of the human rights in that that may not be covered by the collective agreement, and you can pursue something outside of grieving."
Handling employees who refuse to return
When dealing with employees who refuse to return to the office, Gupta takes a cautious approach.
"I don't treat it as abandonment, I'm a cautious lawyer," she says, explaining that she prefers to treat it as a performance issue rather than immediate grounds for termination.
"I essentially treat it, assuming I've done my due diligence, as a refusal to obey a reasonable order."
Immediate termination for job abandonment or gross subordination, according to Gupta, may not hold up in court.
"I don't think the judges are going to like the job abandonment argument. If this person has been able to do the job reasonably well remotely, it'd be really hard to say they abandoned their job.
