Can My Employer Force Me to Return to the Office?

By: Johnathan Berg

COVID-19 was largely responsible for the shift of employees needing to work remotely due to public safety measures. Many employees have become comfortable with the transition to working from home, claiming that they are just as productive, if not even more productive by virtue of this arrangement. As employers look to reopen their office spaces for their employees, work culture is gradually shifting back to an in-person setting. Because of this change, employees are left wondering whether their employers can force them to return the office.

What Are the Legal Implications of My Employer Telling Me to Return to Office?

In Ontario, there are no rules prescribed by any legislation, including the Employment Standards Act (ESA), dictating whether employees have to come into the office to work.^[1] This means that an employer cannot force an employee to return to the office based on legislation or anything in the ESA.

However, your employer can make you return to the office if that was the understanding between you and your employer prior to the pandemic.^[2] Employees should look to their employment agreement for guidance as it will dictate whether there is a specific setting in which they are to perform their duties. Some employers may not require employees to return to the office, although this decision lies at your employer’s discretion.

How Does My Employment Agreement Affect Whether I Have to Return to Office?

Q: What If My Employment Agreement Says That I Can Work From Home Or If the Clause About Where I Must Work From Uses Vague Language?

A: You may have an easier time claiming that working from home is a condition of your employment.^[3]

Q: What If I Have No Established Employment Agreement?

A: If you have no established employment agreement, then there are no specific rules about the location in which you need to work. In this case, you could turn to what was expected of you at the start of your employment. If it was expected that you were to come into the office when you were hired, then that might be an implied term of your employment agreement.^[4]

Q: What if I Was Hired To Work From Home?

A: If you were hired to work from home, then you may have an easier time arguing that working from home is a term of your employment. You may also be able to argue that you have been constructively dismissed if your employer continues to try to force you back into the office.^[5]

What Happens If I Simply Decide Not to Return to the Office?

If an employee has no reason but simply refuses to listen to the request of their employer to return to the office, an employer may be able to claim that the employee abandoned their job. If such cases, an employer could have cause to fire the employee.

Are There Any Situations Where I Can Refuse To Return to the Office?

Health Reasons

If because of health reasons, you are unable to return to the office and believe that you need a medical accommodation, your employer has a duty to accommodate you.^[6] However, an employer has the right to request that you provide supporting documentation from your doctor to confirm the legitimate need for accommodation. Unfortunately, a general fear of COVID-19 will not be enough to trigger an accommodation.

Childcare Needs

An employer also has a duty to accommodate an employee while they search for alternate childcare arrangements.^[7] If your children need to stay home for any reason, you need to advise your employer that you require accommodation. In practice, this may mean that an employer will approve an unpaid leave, or allow you to work from home if they are able to accommodate such an arrangement.

Conclusion

The pandemic has changed the workplace landscape for both employers and employees. It is important that as an employee, you are aware of the legal implications of your employer forcing you return to the office. Employees should turn to their employment agreements to better understand what they are legally required to do and seek appropriate accommodation if they require it. If an employee is unsure about what they should do, it is advisable that they contact an employment lawyer as an employee can possibly be fired in the event that they do not comply with their employer’s request to return to office.

Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.

^[1] “What Can I Do If My Employer Is Forcing Me Back To the Office?” Achkar Law, 17 Aug. 2022, https://achkarlaw.com/what-can-i-do-if-my-employer-is-forcing-me-back-to-the-office/#:~:text=If%20there%20is%20a%20clause,be%20able%20to%20fire%20them.

^[2] Rada, Gledis. “Can My Employer Force Me to Return to the Office After Working Remotely?” Stlawyers.ca, 10 Mar. 2022, https://stlawyers.ca/blog-news/can-my-employer-force-me-to-return-to-the-office-after-working-remotely/#:~:text=The%20general%20rule%20is%20an,medical%20issue%20or%20childcare%20obligations.

^[3] Nightingale, Howard. “Do I Legally Have To Return to the Office After Working Remotely?” Howard Nightingale Professional Corporation , 25 Mar. 2022, https://www.howardnightingale.com/do-i-legally-have-to-return-to-the-office-after-working-remotely/.

^[4] Ibid.

^[5] Ibid.

^[6] Ibid.

^[7] Ibid.