See ya, sweatpants: Employers in BC can mandate staff back to the office

See you later, sweatpants.

The Provincial Health Officer Order on Workplace Safety has now been updated and it means the return to the office could be imminent for some.

Removed is a section that required employers to allow people to work from home, if they were able.

“The previous version of the order contained a section that has been removed. That section required employers to allow workers to work from their private residence, if possible, given the nature of the work involved, unless the employer had an operational requirement to have the worker at the workplace.”

According to the province, employers must still have COVID-19 safety plans in place, and the order on face coverings will still apply at some workplaces.

Now, this change doesn’t mean your boss will order you back to work.

“The Province and the PHO recognize that every workplace is different. Many workplaces will be able to transition to in-person work again quickly. Others may wish to continue with remote or hybrid models. Workplaces and businesses are encouraged to choose the option that works best for them.”

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Can your boss demand you return to work immediately?

Blake Storey, an associate with Kent Employment Law, says employers and employees need to have a dialogue about what should happen.

“So the Public Health Order offers employers guidance on what to do and not to do. I mean, we’ve always encouraged our employer clients to be flexible, ultimately, that means the parties should have a dialogue as to what the transition looks like. Because it does seem that the intent of the new public health audit to ensure a smooth transition back into the workplace. So now it’s on employers to do the right thing.”

Storey adds it’s not really up to the employee whether or not they want to return to the office — that’s why he recommends fostering communication between employees and employers.

“The more they can foster communication, the more likely they’re able to achieve a desirable outcome. But it comes back to the employers and employees working together on this plan. If there are valid medical reasons why an employee cannot attend their workplace, then those reasons should be supported by a doctor’s note and provided to their employer. But otherwise, it’s really an employer’s decision to make,” says Storey.

He adds an immediate substantial change to an employment relationship could potentially fall into the realm of a constructive dismissal. So employers are always able to make changes, but substantial changes require reasonable notice of that change.

Sarah Levine, an employment lawyer with Taylor Janis, says if an employee has concerns about returning to in-office or on-site work and the COVID-19 safety plan their employer has in place, they should raise those concerns with their Human Resources department to see if they can be addressed and improved.

“If the employee’s concerns are still not assuaged, they can request to their employer that they continue working remotely due to whatever their health and safety concerns might be,” adds Levine.

Do you have a case if you’re fired for not coming back to the office?

“Ultimately, it really depends on the individual circumstances,” says Storey.

He says a lawyer would make assessments on a case by case basis.

Levine says it is possible an employer could take the position that the employee is being insubordinate or has abandoned their job which could serve as a basis for termination.

“However, as throughout the pandemic, the balance of health and safety must be struck with what is needed for the reasonable operation of the business. An employer might have a difficult argument upholding a just cause termination for these reasons if the employee had been perfectly able to fulfil their role over the pandemic through remote work. Importantly, however, employees should pay close attention to such policies in their workplace, because the employer’s unilateral change to them might be grounds for constructive dismissal.”

She adds that if an employee has been working remotely as required by their employer and they are not ordered back to work soon after these changes, that employee could take the position that working remotely is a term of their employment, and if their employer forces them back without their consent, the employer has constructively dismissed them, giving rise to a claim by the employee for wrongful dismissal damages.

Levine and Storey both share the same sentiment that these cases need to be analyzed and discussed on a case-by-case basis with a lawyer knowledgeable in the area.