Challenges for Employers Requiring a Return to Work

With many employees having worked remotely for significant periods of time or having had the flexibility to work at times remotely and at times on-site, the final push to require employees to return to the workplace full time may be more difficult than employers had anticipated. Many employees are resisting the return to the traditional workplace model, creating unintended issues that can have significant legal implications for both parties

New Employment Obligations

Employees who have worked remotely out of province or out of the country for extended periods of time may no longer be considered an employee within BC, even if the business is located in BC. When an employee is no longer deemed to be completing work within BC, their compensation worker’s insurance is no longer covered by BC’s provincial legislation but may now be governed by the legislation of the location in which the employee has been conducting work (and that includes remote work). 

This means employment standards, and laws for the enforcement of contracts set out by the employer may no longer be valid. For employers, this means that terms of contracts or policies designed around existing standards under the Employment Standards Act, Canada Labour Code, and WorkSafe BC may no longer meet the employer’s obligations.

This can have negative consequences in terms of standards required for termination, overtime, personal leaves and sick time, and pay. Employers should assess their current remote work arrangements and seek advice regarding remote work arrangements.

New Terms of Employment

Without terms of an employment contract that govern the location of work, and in the absence of clear policies surrounding the terms of an employee’s return from remote working, an employer could face claims of constructive dismissal if what has become an established and accepted condition of employment is changed unilaterally.

When an employer imposes a unilateral change of a condition of employment or unilaterally changes the scope of work, an employee may be entitled to interpret that change as being a breach of the employment contract and akin to termination. Employers should seek advice on how to manage the transition back into the workplace and how to implement policy and terms of contracts to protect against such risks. 

For questions related to employment law, contact partner, Kimberly Pavao.

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