Working from home has had divided success
Question: I have been working from home with only a few days in the office since last March. My employer is starting to make noises that it wants everyone back in the office. Can they force me to go?
Answer: Probably. The present Ontario Government lockdown publications included employers to allow employees to work from home but they do not require it. I represent both employers and employees and my anecdotal experience is that the whole working from home thing has had divided success.
Some employers are wondering why they didn’t get everyone to work from home long ago and are already planning to reduce the amount of space they rent and save money. Some people are told they are never coming back to the office on a regular basis whether they like it or not. And they don’t all like it. I have spoken to some that find trying to work from home distracting and distressing. They feel comfortable in their work space and far more productive even if there are a few people around right now.
Still others count their blessings daily in gratitude for the hours of commuting time they no longer waste and what that has meant to the lives of themselves and their families. And then there are those employers who are finding that allowing people to work from home has significantly affected productivity. Calling up an employee to review a document can be very disheartening when they tell you they are out shopping and can’t help. Seeing work product slow down to the pace of a crawl will rightfully make employers fear that their company is doomed if this situation continues. Given that you have been working at home for some 10 months it would be appropriate for your employer to give you at least a few weeks’ notice of your return to the office date. Unless you have an extraordinary excuse, like small children at home who cannot go to school, you are going to have to return. If you can find a doctor who will write a note indicating that you cannot attend at work because of some medical condition, you might also have an out. And to be clear, I don’t mean a note where the doctor says they “recommend that” or “it would be best if” you work from home.
In a worst case scenario, if you refuse without one of these extraordinary excuses your employer could take the position that you have abandoned your employment and resigned. In a best case scenario, they won’t take the position that the relationship is over but they will stop paying you. There is nothing in the law requiring you to be paid for work that is not done even if you were willing to do it from home.And yes, the employer can call employees back to the office on a selective basis. If the employer deems that some employees have mastered the work from home world and are being productive but others are not they can respond accordingly. Any employer recalling employees to the work place should send with their letter of recall a full outline of all the protocols the employer has put in place for the pandemic so that employees can feel confident that they are being protected as much as possible.Employers who do not have enough space to ensure people can spend the vast majority of their time at least 6 feet from anyone else can think about rotating weeks for who goes to the office.
