Remote Work Reversal: Do You Have to Return to the Office?

Written on behalf of Peter McSherry

As the work landscape continues to evolve after the COVID-19 pandemic, one issue that continues to surface for Ontario employees is the question of remote work reversals. Employers that permitted or even encouraged remote work during the pandemic are now calling workers back to the office after several years away. But in a post-pandemic world where remote work has become the norm for many, can your employer force you to return?

This blog explores the legal and practical implications of returning to the office in Ontario, focusing on employees’ rights and obligations under employment law, the enforceability of return-to-office mandates, and potential legal recourse for employees affected by a reversal of remote work policies.

The Rise and Reversal of Remote Work

The shift to remote work in early 2020 was unprecedented, driven by public health imperatives rather than long-term planning. Many Ontario employers quickly adapted, and numerous employees embraced the flexibility, autonomy, and work-life balance of working from home. Over time, remote work became an ingrained part of workplace culture in many sectors.

However, with pandemic-related restrictions further in the rear-view, some employers are now reversing course and requiring employees to return to the physical workplace after years of remote work. These decisions are often framed as necessary for collaboration, productivity, or corporate culture. But they raise critical legal questions: Was remote work ever a contractual term of employment? Is a return-to-office policy a unilateral change? And what rights do employees have to push back?

Terms of Employment: What Does Your Contract Say?

The starting point for determining whether an employee must return to the office is whether the employment contract or any documented workplace policies explicitly state that the employee’s primary work location is the employer’s office. In this case, a return-to-office mandate is generally within the employer’s rights, provided the employer is not making changes that violate other employment standards.

However, complications arise when the contract is silent on remote work or where informal arrangements have become routine. If an employee has worked remotely for several years with the employer’s approval, and no formal effort was made to define the arrangement as “temporary,” an argument could be made that remote work has become an implied term of employment.

In such cases, a sudden demand to return to the office could potentially be considered a unilateral and fundamental change to the terms of employment, raising the spectre of constructive dismissal.

Constructive Dismissal and Return-to-Office Mandates

Constructive dismissal occurs when an employer significantly changes an employee’s working conditions without their consent, effectively terminating the existing employment agreement. Whether requiring an employee to return to the office amounts to constructive dismissal depends heavily on the facts.

Ontario courts will typically examine:

• The terms of the employment agreement;
• The nature and duration of the remote work arrangement;
• Whether remote work has become an established and accepted practice; and
• Whether the return-to-office policy creates undue hardship or disadvantage.

If remote work was a well-established and consistently applied practice, a sudden reversal could undermine the core expectations of the employment relationship. In these instances, the employee may be entitled to claim constructive dismissal and seek damages equivalent to a wrongful dismissal claim.

Human Rights Considerations and Accommodation

Another layer of complexity arises where remote work is linked to a human rights issue. For example, if an employee has a disability that makes commuting or working in an office environment difficult, they may be entitled to continue working remotely as part of a reasonable accommodation under the Ontario Human Rights Code.

Employers are obligated to accommodate employees up to the point of undue hardship. If an employee can demonstrate that working from home is necessary due to a protected ground, such as disability, family status, or creed, then an across-the-board return-to-office policy could be legally challenged as discriminatory.

It’s also worth noting that the duty to accommodate is individualized. A blanket policy requiring all staff to return may not consider specific needs, and failure to consider accommodation requests on a case-by-case basis could expose employers to liability.

Remote Work and Family Status

An area of increasing legal interest is whether remote work can be linked to family status. For example, an employee with caregiving responsibilities may argue that returning to the office disrupts essential family obligations. Ontario courts have recognized family status as a protected ground, but the threshold to establish discrimination in these cases can be high.

Employees must generally show that the return-to-office requirement seriously interferes with family obligations, that they have made reasonable efforts to self-accommodate, and that there are no reasonable alternatives. Employers, on the other hand, are expected to engage in meaningful dialogue and explore feasible options before insisting on a return.

Health and Safety Concerns

Some employees may also resist returning to the office due to lingering health and safety concerns, especially those who are immunocompromised or live with vulnerable individuals. While Ontario’s pandemic-related emergency orders were terminated years ago, employers still owe employees a duty to provide a safe working environment under the Occupational Health and Safety Act (OHSA).

Employees who believe returning to the workplace poses a legitimate health risk may have the right to refuse unsafe work. However, this right is not unlimited. The Ministry of Labour, Immigration, Training and Skills Development of Ontario will investigate any such refusal, and the employee must remain at the workplace while the investigation is conducted.

Employer Discretion and Business Justification

Even in cases where remote work is not an established term of employment, employers should proceed with caution. Requiring a return to the office without a clear business rationale can create employee morale issues, raise legal risks, and potentially damage the employment relationship.

Ontario employers are encouraged to adopt transparent, documented policies outlining their remote or hybrid work expectations. These policies should be applied consistently and reviewed in light of evolving legal standards, employee feedback, and operational needs.

Employers should also remember that flexibility is increasingly viewed as a competitive advantage in talent recruitment and retention. A rigid return-to-office mandate may result in attrition or reputational harm.

Negotiating Remote Work: What Are Your Options?

If your employer has asked you to return to the office, but you wish to continue working remotely, there are several proactive steps you can take:

1. Review your employment contract and any formal remote work agreements;
2. Communicate with your employer to understand the reasons behind the policy change;
   Propose a compromise, such as a hybrid schedule or a performance-based arrangement;
3. If health, family, or disability issues are involved, request accommodation under the Human Rights Code; and
4. Seek legal advice to understand your rights and potential risks.

When Legal Action May Be Warranted

If the employer refuses to accommodate legitimate concerns or makes abrupt changes that alter fundamental terms of your employment, it may be appropriate to seek legal advice. A lawyer can help determine whether you have grounds for a constructive dismissal claim or a human rights complaint and guide you through preserving your legal entitlements.

It’s important to note that some legal actions have strict timelines. For example, human rights claims generally must be filed within one year of the alleged discriminatory act. Acting promptly is key to protecting your rights.

The Changing Landscape of Work in Ontario

The return-to-office question is no longer a simple operational matter; it is increasingly legal. As remote work transitions from pandemic necessity to a preferred or expected feature of employment, employees and employers must understand the legal landscape governing this shift.

For Ontario employees, the key takeaway is that your employer may be able to require a return to the office, but not in every situation. Much depends on your contract, the duration and nature of your remote work arrangement, and any legal protections that may apply to your specific circumstances.

Contact Peter A. McSherry Employment Lawyer for Trusted Employment Law Advice in Guelph

If you are facing a forced return to the office and are unsure of your rights, contact Peter A. McSherry Employment Lawyer. We can help you negotiate with your employer for continued flexibility, seek accommodation, or evaluate whether a constructive dismissal has occurred. Peter McSherry can help you make informed decisions and protect your interests in an ever-evolving work environment. To book a consultation, please call 519-821-5465 or contact us online.