Return to the office: Struggling with employees unwilling or unable to return

About one year ago, I blogged on various employer considerations for both hybrid and entirely remote work, including location, duration, frequency, home office requirements, legal compliance, etc. See my remote work blog for details.

It was already clear at that time that employers were going to face challenges — perhaps even a mutiny — trying to get some employees physically back into the workplace. It is therefore not surprising to read recent articles such as:

Return-to-office plans unravel as workers revolt in tight job market | Financial Post

The simple reality is that a whole bunch of employees have demonstrated that they can work effectively and efficiently from home for well over 2 years. They have grown accustomed to the benefits of working from home (e.g. no commute; flexibility to take care of household matters during breaks; focused time without interruptions by colleagues; no need for before or after school childcare; etc.), have planned their lives accordingly, and do not want things to not change.

So what’s an employer to do with an employee who says:

“But I don’t want to return to the office. I like working at home.”

• Not wanting to return to the office is not something that the employer must legally accommodate.
• The employer can require the employee to return to the office. Of course, this may result in the employee finding employment elsewhere that permits the desired remote work.
• Some advance notice of the requirement to return to the office is recommended to allow employees to plan accordingly. In some limited situations, a lengthier period of advance notice may be required to avoid or minimize a potential constructive dismissal claim (i.e. where there may be a basis for the employee to successfully claim that remote work is a fundamental term of the employment relationship, as opposed to the remote work only being on a COVID-19 temporary basis until required by the employer to return to the office).
• If the employee refuses or fails to return to the office when required, the employer may treat this as insubordination and appropriate disciplinary action can follow.  

“But I can’t return to the office. I need to work at home.”

• Get more information! Speak to the employee as soon as possible to understand why the employee is claiming to be unable to return to the office.
• If the reason is connected to a protected human rights ground (e.g. disability or family status), the employer will need to conduct a proper assessment of its duty to accommodate and will need to provide any legally-required accommodations, up to the point of undue hardship.
• I have seen two main human rights reasons being provided by employees to justify their refusal to return to the office:
  • Disability Reasons – Some employees claim that they have medical conditions that prohibit them from returning to the office, or otherwise makes it unsafe for them to do so given the risk of COVID-19 exposure. In these situations, I generally recommend that the employer starts by providing the employee with a special type of Medical Report form focused on work-from-home medical requests for their treating doctor to complete. The form provides relevant background information that the employer believes that the doctor should know about the employee in order to properly complete the form. It then asks the doctor about such things as:
    • Whether the employee has a medical condition that constitutes a disability under applicable human rights legislation?
    • Whether the employee is medically required to work-from-home due to such medical condition? Or is it merely a recommendation and not medically-required accommodation?
    • If medically-required accommodation:
      • Why can the employee work from home, but not at the office because of such medical condition?
      • Can the employee work at the office on a part-time or hybrid basis (with the balance of their working hours performed from home)? If yes, what are the hours and days each week that the employee can do so?
      • Are there any accommodations that the employer could provide to enable the employee to work at the office on a part-time/hybrid or full-time basis, or that would increase the amount of time that the employee could do so? If yes, what are those accommodations?
      • For how long will the employee require such accommodations? Put differently, when will the employee be medically able to return to the office on a full-time basis?
      • Please provide any other relevant information that will help the employer understand the employee’s current inability to work at the office so that it can plan accordingly.
  • Childcare Reasons – Other employees claim that they no longer have childcare arrangements in place that allow them to return to the office. Perhaps they lost, or gave up, childcare spaces for their pre-schoolers, or before/after school care for their school-aged children. Perhaps they haven’t made childcare plans for their school-aged children for the summer school holidays. Rightly or wrongly, such employees assumed that they would continue to work at home as they have been (whether known or unknown to the employer) by either “working” at the same time as caring for their children, or flexing their working hours around caring for their children. In these situations, I generally recommend that the employer starts by:
    • Making it clear to the employee that they have an ongoing duty to make diligent efforts to self-accommodate. They must actively seek out appropriate childcare solutions that will allow them to return to the office, including day care facilities, home childcare providers, babysitters, nannies, summer day camps, before/after school programs, family, friends, neighbours, etc.
    • Obtaining more information directly from the employee; namely:
      • Information about the circumstances that have given rise to this request.
      • Information about each child for whom they are requesting the work-from-home accommodations due to childcare reasons (i.e. name; age; current school grade; name, location and scheduled hours if currently registered in any school/childcare provider; whether able to extend scheduled hours; etc.).
      • Information about the other parent if there is one, including their employer, work location and work schedule (including start and end times on each day worked), whether they are working from home, have the ability to work from home, have reviewed opportunities to modify their work schedule and, if so, results of such review.
      • Details of the various efforts/inquiries made to date to self-accommodate and the reasons why childcare arrangements have not yet been secured. Without limitation, this includes such things as:
        • name and location of each day care facility, home childcare provider, babysitter, nanny, summer day camp, before/after school program, family, friend or neighbour contacted seeking childcare;
        • dates on which they were contacted and results of such contact;
        • whether placed on wait lists and, if so, details and current status of wait lists;
        • whether advertised or contacted any agency or other third party for assistance securing childcare and, if so, details of the same; and
        • details of other efforts to secure childcare.
      • If the employee intends to work from home at the same time as caring for their children, an explanation of how the employee intends to do so.
      • Expected duration of requested work-from-home accommodations.
• Based on the information provided, the employer can then better assess whether continued work-from-home on a full-time or hybrid schedule is legally required accommodation that does not cause undue hardship to the employer.  It may be that an alternative form of accommodation such as modified/flexible hours, reduced hours, unpaid leave of absence, etc. is appropriate accommodation in the circumstances.

If you have any questions or require any assistance with return to the office arrangements, including dealing with employees who are unwilling or unable to return, please feel free to reach out to any of the lawyers in Siskinds’ Labour & Employment Group.