Return to work and the duty to accommodate

As the pandemic fades into history, interest in flexible work arrangements and working remotely is likely to prevail to some extent. Employers are wise to tread carefully when requiring a return to in person work and navigating the way forward with employees who request to continue remote working arrangements.

Employers have a right to ask employees to return to work and the employer generally has a right to change remote work arrangements at any time if there are legitimate operational needs and provided that the employer’s demands are reasonable and the employer has considered any employee requests for accommodation.

Employees who have worked remotely for a length of time may believe they are entitled to continue working remotely, but most remote work situations represent a temporary arrangement in response to the pandemic.

However, even if the remote work arrangement was a temporary response to the pandemic, BC employers may have a duty to accommodate employees’ continue work from home arrangement under the Human Rights Code in special circumstances such as a illness, disability or family care arrangements . Where that duty arises the employer must treat employees reasonably to avoid discrimination in the workplace. This ensures that all employees, including those with a disability, or special family circumstances, can continue working when employers accommodate their needs up to a point of undue hardship.

When considering accommodating an employee, employers should consider requests individually and on a case-by-case basis. For instance, if a request relates to special family needs, the employer is permitted to make reasonable enquiries into the circumstances of that employee’s family status in an effort to evaluate and potentially accommodate their needs. General policies on remote working may not apply in all situations and employers must consider the circumstances, work collaboratively with each employee and explore solutions. Some steps employers can take are as follows:

  1. Identify the need or request for accommodation
  2. Obtain relevant information and consider the needs of both parties
  3. Make an informed decision with the help of a lawyer as needed
  4. Take action on your decision and put your plan in motion
  5. Securely document your process and all communications, follow up and modify as needed

Do consult a lawyer if you have questions about returning employees to the workplace.

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