As in-office workdays are set to increase for many hybrid workers in Canada, return-to-office mandates are starting to create tension between employees and employers. The shift towards remote and hybrid work, which gained traction during the COVID-19 pandemic, is now giving way to arrangements more aligned with traditional office practices. This transition is notably occurring as labor market conditions have shifted in favor of employers. Major financial services firms in Canada, including prominent banks, are implementing policies that require employees to work in the office four days a week starting in the fall.
Employment lawyers are reporting an uptick in inquiries from clients reluctant to give up their at-home workdays. They note that companies are taking a firm stance compared to previous years when a lower unemployment rate provided more leverage to job seekers. Philippe de Villers, chair of Chartered Professionals in Human Resources Canada, highlighted that with economic uncertainty, employers feel empowered to enforce these mandates, suggesting to employees that they can either adapt or seek employment elsewhere.
The basic choice facing employees unwilling to comply with return-to-office requirements often boils down to seeking new job opportunities. Sunira Chaudhri, founder and partner at Workly Law, indicated that many employees are contemplating significant career changes. Those encountering stricter return-to-work policies that do not align with their preferences are increasingly likely to look for positions with more flexible arrangements.
Such return-to-office trends are primarily observed in large enterprise-level companies such as banks and accounting firms rather than small businesses or organizations focused on talent retention. The Bank of Montreal (BMO), Royal Bank of Canada (RBC), and Scotiabank have announced plans to require more employees to be in the office four days a week, citing improvements in operations and collaboration opportunities.
For employees who prefer to remain in their current positions but do not need accommodations due to family or medical circumstances, compliance with return-to-office mandates may be necessary. However, employees with family obligations may have grounds to request exceptions. Chaudhri underscored the importance of providing accommodations for employees whose childcare responsibilities might be affected by a full-time return to the office, particularly for those needing to manage pick-up times from daycare.
Similarly, employees whose medical needs have changed may require special accommodations. Chaudhri pointed out that employers need to be vigilant about possible medical accommodations as employees transition back to regular office hours. Pinkus noted that accessing medical treatments, medications, or needing proximity to healthcare facilities could necessitate such accommodations. Employers are obligated to provide reasonable accommodations, barring undue hardship, as defined by the substantial difficulties or costs associated with meeting an employee's needs.
Legal challenges may arise if an employer attempts to enforce a return-to-office policy without clearly communicating whether remote work arrangements were temporary or permanent prior to 2020. Pinkus indicated that if employees were not informed of a temporary status and an employer attempts to require office presence, it may constitute a breach of contract. However, if employers had made expectations clear, pursuing legal action may prove more challenging for employees.
Employees contemplating refusal to return to the office should proceed cautiously, as it could lead to serious consequences if the employer possesses the right to enforce attendance. Abandoning employment under these circumstances could mean loss of severance pay. Both Pinkus and Chaudhri acknowledged that constructive dismissal claims could arise if an employer alters fundamental employment terms without consent or sufficient notice. Chaudhri also mentioned that employees could assert that the transition back to the office represents a significant shift from their established work arrangements.
Employers have gradually been requesting increased office attendance to mitigate potential constructive dismissal claims. Employees may be expected to provide evidence of constructive dismissal, which can be challenging. Overall, as employers and employees navigate the complexities of returning to the office, it becomes essential for both parties to understand their rights and responsibilities under changing labor conditions.
