Workplace Flexibility Rights Advance During the Pandemic

Written on behalf of Peter McSherry

Are the new workplace flexibility rules in response to the Omicron variant here to stay? Here is what employees and employers need to know about flexible work arrangements.

Emergency Work from Home Orders and Recommendations are Coming into Place Due to the Omicron COVID-19 Variant

Increasingly, governments are encouraging or even ordering employers to provide employees with work-from-home arrangements. As of December 20, the Quebec Government recently ordered all employees who could work from home to do so where possible. On December 10, Ontario Chief Medical Officer Dr. Kieran Moore asked employers to continue allowing people to work from home whenever possible.

Some of these orders and recommendations lead to more questions than answers. What factors make it possible for an employee to work from home? In some cases, it may appear obvious, but less so in others. For example, can a human resources department function working from home? Perhaps. A janitorial team? Definitely not. Teaching staff? Likely not, although when schools were remote, many teachers did work from home.

This last example, teachers, shows how difficult these determinations can be to make. In theory, kindergarten classes can be taught remotely. In practice, teaching young students remotely can be very disruptive to the children themselves who have reportedly experienced learning losses with remote education. Children participating in remote learning was disruptive to parents as well, as they had to supervise their children and also work from home.

Taking into consideration occupations like a human resources consultant or insurance salesperson, these jobs may also be done from home in some circumstances. However, are certain elements of the job being impaired by remote work? Does that render work from home possible or impossible in those circumstances?

Employment Standards May Require Employers to Offer Workplace Flexibility

Where do workplace flexibility rights come from? It depends, but for non-unionized employees, employment standards legislation covers the bare minimum employers must provide. Additional rights and benefits may be found in an employee’s employment contract or workplace policies. In the case of unionized employees, it may start with the collective agreement.

Most Ontario employees are covered by the Employment Standards Act, 2000, which does not currently contain a right to flexible work arrangements. However, there are proposed changes being considered (including a “right to disconnect”, which we previously wrote about here) and there may be further changes proposed due to the pandemic, the increasing focus on work-life balance, or both.

In the meantime, Ontario employees in federally regulated industries – like banking, telecommunications, and cross-border transportation, to name just a few – are protected under the Canada Labour Code, which has stronger protections for employees in this space.

The Canada Labour Code provides employees with the right to request flexible work arrangements. Flexibility includes requests for part-time work, changes to work location (including a change to work from home), or hours of work (for example a switch from evening shifts to daytime shifts). Employers do not have to accept all employee requests. However, under these provisions, the employer must respond in writing and if the employer is denying a request, they must have a valid reason.

The reasons that are considered valid are prescribed in the legislation and regulations. These include situations where granting the request would:

• Increase costs to the employer;
• Be detrimental to the work quality or quantity;
• Require recruiting existing or new employees to do part of the work and the employer is unable to find those employees;
• Require some other type of reorganization that the employer cannot do; or
• Create insufficient work for the requesting employee.

While there is still considerable room for employers to decline flexible work arrangement requests, it has narrowed considerably. A manager denying a request simply because they would prefer to work in person, would arguably not be permitted under the Canada Labour Code.

A final piece that employees and employers should know is that employers are prohibited from retaliating against an employee for exercising their right to request workplace flexibility.

Workplace Health and Safety Protections May Also Apply to Employees Seeking the Right to Telework

While there is no blanket right to work from home or telework, these requests for workplace flexibility are currently emerging in the context of a global pandemic. As we see cases increase in this or in subsequent waves as new variants emerge, many employees may not feel safe being in the workplace. In such cases, workplace safety protections may apply.

For provincially regulated employees in Ontario, the Occupational Health and Safety Act provides basic protections to employees. These protections include the right to refuse or to stop work where the employee’s health or safety is in danger. It also includes the right to be free from reprisal for exercising your rights. Federally regulated employees have similar protections under the Canada Labour Code.

Human Rights Legislation May Also Apply to Flexible Work Requests

In addition to what is described above, employees and employers should consider their potential rights and obligations under human rights legislation.

Many individuals who are requesting remote work arrangements are doing so because they have childcare obligations, provide care to an elderly relative or someone immunocompromised, or they themselves have a disability that renders them immunocompromised and at risk of complications from COVID-19.

Family status (including having an obligation to provide care for children, disabled or elderly individuals) and disability status are protected grounds under the Ontario Human Rights Code and other similar human rights legislation. Employers and employees should consider whether there is a duty to accommodate associated with the request for workplace flexibility.

There are Remedies for Employees Who Are Denied Flexible Work Arrangements in Certain Circumstances

If an employer terminates or punishes an employee who is requesting a flexible work arrangement, this may be a breach of employment legislation or the employee’s contract. The remedies under these circumstances can vary depending on the circumstances. In some cases, employees have been awarded wrongful dismissal damages and in others reinstatement of employment has been ordered with damages paid to the employee.

Contact Peter A. McSherry Employment Lawyer for Advice on Workplace Flexibility

If you are an employee and you want to understand your workplace flexibility rights, or if you are an employer looking to ensure you stay compliant when receiving requests for workplace flexibility, contact the offices of Guelph’s Peter A. McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.