Since the pandemic, remote and hybrid work conditions have become a mainstay work model that has co-existed and, in some cases, has overtaken the traditional physical work setting. During this period, given the social distancing requirements and occupational safety concerns, employers accepted remote work as a regular option, allowing existing employees to work remotely from their homes and hiring new employees with provisions specifically indicating a remote work environment.
Remote work allows for certain benefits for both the employee and the employer – including flexible hours, a better work-life balance, and significantly fewer work commute emissions. Yet, it simultaneously creates new legal obligations that burden the employer. Employees must maintain occupational safety standards for the employee’s workplaces, which can be troublesome if employees are free to work wherever they choose. This problem also creates risks of privacy infringements. In specific federal jobs, for instance, remote work employees who handle confidential information must follow stricter protocols to ensure that the sensitive data of Canadians are not breached, including limiting their remote work capabilities to the site of their home.
Additionally, work-from-home employees have forced employers to adjust their work policies to match the unique jurisdictional properties of the work model. Employees who work remotely are subject to the laws of their local jurisdiction – not necessarily the employer’s jurisdiction. These adjustments mean that specific requirements may be imposed upon those who work across provincial or country boundaries, requiring employers to keep up with laws regulating jurisdictions outside their office to avoid legal conflicts.
The Current Right to Remote Work
Because of these legal problems inherent with the remote work policy, there has been a recent shift to bring employees “back into the office,” a move enacted around a desire for increased productivity and team cohesion. Employers have the general right to call employees back to the office as a part of the employee’s contract. However, there are several stipulations to this right.
Firstly, employees hired exclusively to perform remote work may be entitled to avoid these policies. More generally, employees have been granted the “right to request” as part of s.177.1 of the Canada Labour Code, allowing them to request a change to the terms and conditions of their employment after six months of continuous employment. Within the last decade, this right has been amended to include remote work, allowing employees to request to work remotely, subject to a justification by the employer to restrict this change. Yet, there is no clear evidence of the effectiveness of an employee’s claim. The recent flood of companies requiring employees back to the office could create significant conflict between workers and employers, potentially creating significant disputes with respect to workplace safety and employment stability.
Recent Federal Back-to-Office Mandates
The most prominent case of an employer requiring its employees back to the office is the Government of Canada, which recently enacted an amendment to the Direction on prescribed presence in the workplace, a policy that regulates the amount of time federal employees must spend in the physical office. Enacted this September, this amendment requires federal employees to be in the physical office at least three days a week. This new ruling not only forces employees to prepare to migrate their workspaces back into the office but requires public service offices to rapidly restructure to accommodate a federal workforce that has grown significantly over the past four years. As mentioned above, workplace safety has become an emerging issue in this development.
Following the news, the Public Service Alliance of Canada (PSAC), a union representing Canada’s public services workers, brought a case against the federal government’s 3-day mandate. The issue with the proposed amendment, as the PSAC notes, is that workers are being brought back to workplaces that lack the proper infrastructure to ensure accessibility and safety. While a court date is not set, the Federal Court agreed to hear the case, allowing the union to properly share its case about the complications of rushing employees back to ill-suited offices. Whether this 3-day mandate will remain in force after the court hearing is unknown; however, it is a step towards seeking more just work conditions for federal employees. Questions surrounding occupational safety and employee satisfaction have only risen since the emergence of remote work as an established work environment, and sudden mandates to return to the office present serious risks to employee safety and well-being.
As the jurisprudence of the subject continues to develop over the upcoming months, the legalities surrounding remote work have become muddled as unions and employers continue to conflict about acceptable working conditions. Employers globally are enforcing back-to-office mandates, including at Amazon and Starbucks – the latter hinting that employees who do not follow the mandate could be released or fired. It is unclear how the state of remote work will play out, but the general trend indicates that a wave of labour quarrels may be coming in the near future. These quarrels could lead to increased tension in the workplace, potential legal battles, and a reevaluation of the employer-employee relationship.
- ED
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