Ontario: Recall Workers to the Office Before It's Too Late

​Another year, another lockdown. People are back to working from home and restaurants are closed again. But this time, finally, an end is in sight.

On Jan. 20, Ontario Premier Doug Ford announced a three-step plan to gradually ease restrictions across the province. As of March 14, Ontario will lift all capacity limits in indoor public settings. With the vast majority of province's population vaccinated, this may be the light at the end of the tunnel Ontarians have been waiting for.

But with the lifting of capacity limits comes a warning to employers: recall employees to the workplace before it's too late.

Although some sectors, such as tech, have embraced remote work and shifted to that model permanently, many employers are patiently waiting for their empty offices to be filled.

A word of caution: permitting employees to work from home longer than legally necessary risks making that a permanent term of their employment. In such a scenario, an employee who is later forced back to the office could claim the move amounts to a constructive dismissal, refuse to attend and sue for wrongful dismissal if the employer does not back down.

The news that the latest lockdown is coming to an end makes it now opportune for employers to advise employees that they are required to return to work.

Some tips to remember are:

1. The time to recall employees to the office is limited. The sooner employers act, the less likely an employee can claim constructive dismissal. If employers act quickly enough and employees refuse to return to the office, they have abandoned their employment.

2. Employers should document these communications. A phone call is not sufficient protection.

3. Finally, if remote work is the new norm, employers should offer new contracts that include work-from-home rules. Employers legally have a choice of offering employees their jobs back at the office at their existing remuneration but offering a lesser amount if they prefer to work from home. With a shortage of workers though, that may not be practical.

Many employers will fail to address these issues and 2022 may just become the year of "return-to-work" constructive dismissal claims, just as 2020 was with COVID-19 layoffs and 2021 with vaccine mandates. As with those other claims, the employer's timing and proper documentation will play a key role in deciding whether employees will receive an award of damages. Employers should not view the Jan. 20 announcement as just another false alarm, but rather, take Premier Ford at his word and act accordingly.

Many employers who failed to properly handle temporary layoffs and vaccine policies have spent a considerable amount in damages and legal fees over the past two years.

Employment lawyers have moved from niche practitioners to some of the most in-demand legal specialists due to these kinds of policy errors by employers. Some employee-side law firms have even instituted bonuses based on the number of claims filed by associates each month. At our firm, when acting for employers, we are receiving fewer demand letters. Instead, employer clients are being served statements of claim without warning. Many of these claims could have been avoided.

It is never too late to get your business's documents up-to-date and in order. Drafting contracts that will survive judicial scrutiny is the first step.

With so much uncertainty regarding the COVID-19 pandemic, employers are well-advised to determine now their intentions as to which employees will be permanently granted work-from-home status and to provide instructions and documentation accordingly.

To be clear: It is the employer's right to decide—provided employers act quickly.

Howard Levitt and Puneet Tiwari are attorneys with Levitt Sheikh in Toronto. © 2022 Levitt Sheikh. All rights reserved. Reposted with permission of Lexology.