I have been working remotely during the pandemic. Can my employer force me to return to the office?

During the pandemic, many employers were forced to go entirely remote or partially remote due to health and safety concerns related to the COVID-19 virus. 

What came out of that was a dramatically changed labour market. Many companies have revisited the necessity of requiring workers to physically work out of the office space. Many workers have expressed a preference for partial or full remote work arrangements, particularly those with long commutes to the office.  

There is much debate about whether workers are truly as productive working remotely and whether remote work is now the prevailing model going forward.  

Many businesses faced with a labour shortage are concerned about worker retention and, like it or not, have allowed employees to work from home.  While many businesses have suggested rotating schedules, these have not necessarily been rigidly enforced or monitored by employers. 

However, as we come out of this pandemic, we are now seeing businesses implementing mandatory rules about in-person attendance at the office – for the most part, requiring partial attendance in the office. Major financial institutions in New York are requiring employees to return, and I suspect financial institutions in Canada are likely to follow suit. 

From a legal perspective, can the employer force this? Broadly speaking, if the employee’s contract does not expressly confer a right to work remotely, then the employer likely has the right to require in-person attendance at the workplace, if the employee had historically reported to the office pre-pandemic.  Requiring in-person attendance is unlikely to be viewed as a fundamental change to terms or conditions of employment considering this was standard routine in the past.  

That said, if the employer agreed that remote work arrangements become permanent or if the employer allows remote work on an ongoing and indefinite basis, this may have the effect of creating a contractual right and expectation of ongoing remote work. If the employer then forced staff to return to work, this may be considered a constructive dismissal entitling the employee to a severance package.