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I’ve been working from home during the pandemic. My employer wants me to come back in to work, but I’m not comfortable doing so. Can they legally force me to do so?”
In most cases, your employer can require you to return to the workplace after working from home, according to Nathan Rayan, an employment lawyer with North Shore Law.
“Generally speaking, employees don’t have a unilateral right to change the location of where they do their job,” he said. “So the presumption would be that the employer can summon the employee to come back.”
Like many employment law issues, it all comes down to what’s in the contract.
If there is a stipulation in the contract about the employee’s ability to work from home, then that should apply, Rayan said.
But generally speaking, he said, employers can call workers back as long as they follow provincial guidelines.
All employers must develop a six-step COVID-19 safety plan, outlining how they are preventing the transmission of the novel coronavirus. The plans must include risk assessments, physical distancing measures, cleaning procedures, policies for the use of barriers and personal protective equipment when needed, sick pay plans and signage informing patrons and staff of these policies.
If an employee doesn’t want to return to a workplace that has a safety plan that conforms to the provincial rules, they may not have a choice, Rayan said.
“It’s not a case where saying ‘I feel uncomfortable’ is going to be the be-all, end-all. It’s going to require an objective look at the actual danger in the workplace and the measures that the employer has put in place,” he said.
Rayan said that expectation is based on decades of precedent in employment law, but it’s possible the pandemic could set new standards and create a “brave new world.”
But he doesn’t expect radical change in decisions when these types of cases come to court. Instead, the system will likely find itself trying to “hammer the COVID peg into the pre-COVID whole,” he said.
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