This week, Jill and Dana tackle another hot topic as they discuss employment rights around returning to the office after working remotely. As an employer, can I force my staff back to the office? As an employee, if I’m more productive at home, can I be forced back into the office? Our hosts address issues around the return to work from both perspectives including accommodation, family status, contracts, and of course, hard pants.

Full episode transcript below:

Narrator: This podcast is produced by Nelligan Law.

Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real life workplace issues that affect real people.

Jill Lewis: And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.

Dana DuPerron: Welcome to All Worked Up. I’m Dana.

Jill Lewis: I’m Jill.

Dana DuPerron: Jill, you are our guru on this topic, so what has got you all worked up today?

Jill Lewis: OK, we’re worked up about returning to the office. So it’s been a big question. With summer over, you know fall is here. People are being asked to come in on either a hybrid or full-time basis. And people want to know, what are my legal rights? I want to stay home. I don’t want to come in. What can I do? So yeah, that’s the topic today. We’re going to talk about like is there anything that you can do? Or maybe how to approach your employer if you want to stay home?

Or if you want to come back, what to expect. 

Dana DuPerron: Yeah, March 2020, big shift for like a lot of people right? And at first it was crazy and kind of oh, what’s going to happen? Who knows, kind of exciting. It was different.

Jill Lewis: Got my like computer at home and everybody seemed to be onboard with it. Companies did not crumble, like people were able to do this well. Most employers were able to do it pretty well, or most employees. But now we’re really seeing that shift. That whole excitement around that time is gone. 

I think people, I think employers are ready to get employees back into the office. Whether it worked well or not, I do think employers like to see their employees in the office. At least on a part-time basis. And there’s a lot to it as well. It’s more than just like I want to see my employees because I want to know they’re working.

Dana DuPerron: Sometimes.

Jill Lewis: Sometimes that is what it is. There’s also like other you know, like psychological stuff around. The interactions between coworkers, in between meetings, on the way to a meeting in the hallway, in the lunch room, like bumping in to people, running into people’s office. 

Like there’s a lot to it. I have been going back about two days a week, and I enjoy it. Because I get to chit chat and stuff, because I think I am a little bit more of an extrovert.

And then there’s some people that are like don’t ever ask me to come back in.

Dana DuPerron: It takes motivation to get out of your house. Like we’ve talked about that a lot at work. Like to just get dressed, in like real clothes and hard pants, eh?

Jill Lewis: I know yeah, yeah.

Dana DuPerron: Huh, huh?

It’s hard.

Dana DuPerron: That’s a term that the kids use isn’t it? But anyway, you know to like get out of your house. I’m so old, but yeah it’s – so there’s that.

Jill Lewis: It is hard to get yes, yeah. So some people are being then forced to come back into the workplace.

Dana DuPerron: Yeah.

Jill Lewis: You know their employer is saying it’s time.

Dana DuPerron: Yeah, and saying that’s it, you’re back. You’re either back full time or you’re back part time. One of the good things too that I think, I think it’s hard to be new in a job. Either a particular, like either you’re a seasoned person and you’re going into a new workplace, or someone’s starting out in their career. Maybe more for introverted people like to – if you don’t know what to do, to go ask someone. It’s easier if they’re in person than if you’re like ugh, I have to call them and hear that like ding, ding. [Singing ringtone] And you’re like ugh, who’s calling me? And it’s like anyway, all that to say that’s a factor. But yeah, people are being forced back. What do you do?

Jill Lewis: So what do you do? OK, all right so let’s break this down a few different ways. If you want to stay home because there are health concerns. Maybe – COVID isn’t quite as rampant as it was, and you can’t necessarily use the health issues as well as you could before. Like before there was vaccines, and boosters and all of this. But if you do have like you know, an immune issue and that. Or maybe you’ve got somebody in the house and you can back that up with medical. If your employer is asking you to come back into the workplace, and you feel that your health is, or that your doctor feels that this would be you know, terrible for your health then yeah. You could use that as an accommodation. You could ask your employer, I need to be accommodated by working from home.

So there was one route to go down. You need to talk to your doctor. You’re going to need medical, and then you’re going to have to submit it to your employer, and there’s going to be an accommodation request there.

Dana DuPerron: It also has to not be – when we’re looking at any kind of accommodation it has to be – it can’t cause the employer undue hardship. So if you have a job that you can’t really do from home. Like we’re talking about people who have mostly been working from home, and then now it’s like I want you in the office, but you could do your job remotely.

Jill Lewis: Exactly.

Dana DuPerron: If you don’t have job that you can do remotely.

Jill Lewis: Yeah, yes that’s not going to work. That’s not going to fly yeah, yeah.

Dana DuPerron: Because of the undue hardship. They don’t have to put you in a new job.

Jill Lewis: No. No, it’s your job and if you can’t do it then maybe it’s – you can’t do it.

Dana DuPerron: Yeah.

Jill Lewis: So OK, there’s that route. There’s accommodations. You could request to be accommodated by working from home. So health is the biggest one. There could be family status, like maybe childcare.

People have changed their – I mean people have moved. People have changed their childcare arrangements. You may be doing pickups and drop-offs at different times because you’re working from home. Suddenly your employer wants you to come into the workplace, and all of that gets like, thrown up in the air. And if you can’t do it you may be able to ask for accommodation. It’s hard to ask for accommodation based on family status because you really have to be able to prove that you cannot you know, drop off your kid at daycare unless you’re working from home.

Dana DuPerron: Yeah, it might take some time, right? Like you might need a little bit of time to like fix your – like it’s difficult to be like OK, everyone’s back in the office on Monday. And you’re like wait a second, I didn’t know this was coming. I have – then OK yeah you have some time to sort of –

Jill Lewis: That time’s up to your employer.

Dana DuPerron: – figure that out. But –

Jill Lewis: What do you do if just…

Dana DuPerron: – what have you been doing great at home? Can you say “Well I work better at home, so I get to stay home” if your employer is saying come back?

Jill Lewis: Nuh-uh, nuh-uh, no. No you can’t. Like you can go say it.

Dana DuPerron: Yeah, I mean you can physically say it.

Jill Lewis: You can physically say the words, but you can’t lean on it. You’ve got no legal right to stay at home just because it worked well. Like that’s just not how the workplace works.

If your employer wants you to come back, and you have no like accommodation requests then you have to come back. So instead right? Like I would certainly talk to your employer if, if there is – if you feel that you want to work full time at home.

Maybe you have – for whatever reason. And it’s working well, then talk to your employer to see if that can be sort of a new term in your employment agreement. So I just drafted up some contracts recently and that is now a new term is you’re allowed to work from home. 

This one employee got two days, the other employee didn’t get any days. It was like a negotiation. So that’s something that maybe you negotiate now into your contract that you can work from home for two to three days a week.

Dana DuPerron: Definitely when you’re starting a new job too. It’s a conversation to have now.

Jill Lewis: What’s what it was yeah. Like you know if you’re working – new employee for sure. If you’re an existing employee you don’t necessarily have to rewrite your contract. You can have a conversation. Because the employer could bring you back. Even if that’s in your contract, they can probably bring you back to work in the future if they want to anyway. 

But this is often a conversation I have with people is – and I think we’ve talked about this in other episodes. Is the relationship doesn’t necessarily have to be confrontational between employer and employee. Like your personal goals aren’t always aligned, but if you have – like if you can go to your employer and be like listen, I like working from home because I’m more productive. I don’t have people stopping in all the time. I’m able to get through like way more. I can show you that. You know, that’s persuasive, and they very well might, might not, but could say OK yeah we’ll work with you.

Like a conversation is often the first step in anything. And you know, again we’re not sociologists, but what’s that thing? Like 70% of miscommunications is like, or 70% of conflict is because of miscommunication or something like that.

So you know, if you can have a calm, reasoned discussion where you’re sort of setting out your position, and making your request. Not a demand, because you don’t have the right to demand it you know? That’s worthwhile. 

Now if you’re someone who is very in demand and could go somewhere else, you know you can make those threats, but you’ve got to be careful doing so.

Dana DuPerron: Well they might call your bluff so you’ve got to yeah, but it is a bit of an employee market right now. And so that’s one thing I’m telling employers is in order, like for retention purposes. Allowing your staff to work from home is a free incentive that you can provide. That might set you apart from a different employer. And it’s free, right?

And if it’s working then OK, like maybe you really want to lean in on that incentive right? Like some employers will provide benefits and pension plans to keep good staff. That’s expensive. So if, like allowing somebody to work from home two days a week can keep a really great staff member then I would absolutely consider it. Because other employers, they’re going to jump ship. So you know, loyalty’s not the same as it was. People don’t just start working at one employer and stay there until they die. 

They you know, especially in the pandemic when you’re working from home, and you’re not in the physical space. You’re not seeing your colleagues one on one. Like people may not have that tie to that employer the way they used to.

Dana DuPerron: Oh but be careful. But then you’re making the case for why you should be back in the office.

Jill Lewis: Oh, whoopsie-daisy. So I don’t know. OK look.

Dana DuPerron: But that’s true.

Jill Lewis: I’m not a sociologist. I just think that people don’t have the same type of loyalty that they had before. And maybe that’s not…

Dana DuPerron: It might be more loyal. If you’re open to a flexible discussion yeah.

Jill Lewis: That is exactly what I’m saying, Dana thank you. I’m saying employers if you’re open to flexible arrangements with your staff. Like I think any employer that you know, if you’re going to be really strict on like a 9:00 to 5:00. You’ve got to be in here from 9:00 to 5:00 and I don’t care. Like if some staff members want to start at 7:00 if they can, if it’s OK that the job can get done at 7:00a.m. To 3:00, like you know? If you can be flexible with that type of thing, the same thing with working from home. I think that is what creates loyalty. That absolutely creates loyalty. 

Dana DuPerron: As opposed to just rigidity for the sake of rigidity? Like follow these rules because I say so.

Jill Lewis: Exactly.

Dana DuPerron: Without any sort of explanation. 

Jill Lewis: Yeah.

Dana DuPerron: And people aren’t entitled to an explanation, but I do think that it helps to build that trust and loyalty as you’re saying.

Jill Lewis: Absolutely, yeah.

Dana DuPerron: Now we’re kind of wrapping this up, but I want to throw this out here because I know it’s a term that you’ve used. And that I think resonates with you, or that I don’t know what’s it going to be? Pop quiz.

Jill Lewis: what’s it going to be? Oh, my God.

Dana DuPerron: Empathy fatigue. You used that and I thought oh, that’s so interesting. So like kind of walk us through that and what’s the tie in to returning to the workplace?

Jill Lewis: So I think the idea is that at the beginning of the pandemic everybody was like in it together, right? And like we’re all like very understanding that you know, people’s children had to be home. And that parents were really busy, or people were ill and had to take time off. 

And employers were incredibly understanding you know? Or yeah, you’d be in a meeting and you hear kids in the background. And everybody was very understanding. There seemed to be like this sort of like in it together idea. That we’re you know, just going to get through this. 

I think people are over that. I think there is like only so much of that empathy that some colleagues and employers have towards their employees. And I think it’s just after years of this. Like because now it’s been years. That they just don’t really like care for the – I don’t want to say like excuses. It’s just the idea that like some people still have to work from home. Because kids are still getting sent home from school. Like the guidelines are still very strict at schools. Especially last year, they were outrageous.

Dana DuPerron: Compared to what they used to be? I remember like when my daughter started kindergarten, or daycare it was like you’d walk by the room and everyone was coughing. Snot everywhere.

Jill Lewis: Oh my. Boogers galore. Like my kid would be like vomiting and I’m like here you go. And they’re like great, we’ll take him. And now it’s like you know – 

Dana DuPerron: Was that a sniffle?

Jill Lewis: Fever, sniffle [clears throat] sent home. How long? 10 days, 10 days. So there’s certain people that are still very much living the pandemic. And then there’s other individuals who aren’t. And I think that the empathy for those individuals who are very much living it is unfortunately diminished slightly. So as a result I feel like what I’m seeing from the people who are getting terminated during like restructuring, and business decisions and that. It seems to be young like parents, with young children. Women, and I think a lot of it’s stemming from because they all have the same story is “I had to use a lot of either sick days, vacation days, personal days. Or I put in a request to work from home.”

Dana DuPerron: And not keen to come back into the office?

Jill Lewis: And I wasn’t keen to come back into the office. Yeah, like when – yeah, whenever all the everything was lifted I wasn’t ready to jump back in. Because I couldn’t. “I had to have my kids at home. They didn’t think I was working, whatever and suddenly, mysteriously I’m fired.”

So there’s a little bit of that I think that’s happening right now is people are forgetting that even though the pandemic is like, quote, unquote “over” there’s still a lot of people like, in it. People that you know, with young children. And they’re…

Dana DuPerron: Or that even if things yeah, do change it’s – there have been knock-on effects, or things as a result that we just have to – that play into things that are a factor. Which, so where does that sort of leave us I guess? Is if you’re thinking, if you’ve been asked to go back to work and you don’t want to. Speak to someone about whether there’s any basis for requesting accommodation. 

Jill Lewis: Yes.

Dana DuPerron: Speak to someone maybe about strategy around that discussion with the employer. And if you’ve been fired for not coming back to work, or if that was kind of an issue and there could have been accommodation issues there or something. Speak to someone just to keep those ideas in mind.

Jill Lewis: Yeah, and you want to be transparent with your employer. And like we’re saying it doesn’t have to be in a confrontational way. But if you do have childcare arrangements that have been setup, let your employer know. Maybe do it in writing if you can, and then that way if you are fired a few months later. Like maybe you lean back on that and say you know, you use that to show that the termination was actually as a result of your request to work from home and that type of thing, yeah.

All right guys.

Dana DuPerron: Well lots to consider. Interesting, another interesting one yeah.

Jill Lewis: All right. OK, we’ll talk to you guys next week. Bye.

Dana DuPerron: Bye.


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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