Employers might require employees to remain in the province of the company or require them to be available to attend work the following day at any time.

I am arguing cases at live hearings in both British Columbia and Alberta this coming week, a sign the Grand Reopening has unofficially commenced.

You see it everywhere. Previously repressed Canadians out and about, spending the money they saved at unprecedented rates during the past 15 months. They are re-enacting the lives they fondly remembered and have been desperate to have return: dining, travelling, visiting their friends and fully returning to work.

But threats remain. Irresponsible fiscal policy has led to inflationary risks, which could ultimately hemorrhage the employment market. Employees have been incentivized to stay home with stimulus cheques paying close to what they earned working. Employers, particularly of lower income workers, have had trouble recruiting, and that was before the economy sprung fully to life. But those stimulus cheques are getting smaller, driving more employees back into the workforce.

And COVID still lurks.

Employers are trying to reach the Goldilocks zone: not too risky, not too timorous – just right.

So, what employment law dangers – and opportunities – will soon abound? Here are a few:

Lawsuits for not requiring vaccinations

We can expect to see lawsuits for negligence against employers that do not require employees to vaccinate. Public health authorities and governments are strongly urging vaccinations and they are becoming the standard of care. At law, if you fail to adhere to the prevailing standard of care, you are prima facie negligent. That is what negligence law is based upon. Imagine a company in the near future that does not require vaccinations and an employee or visitor to that workplace is stricken with COVID. You can anticipate they would sue that employer for not requiring vaccinations.

From the employer standpoint, if they require vaccinations among their employees and someone does contract COVID regardless, they will have a perfect defence to a negligence claim as vaccinations are the gold medal standard of protection. Once employers realize this, why wouldn’t they require vaccinations?

But can they? Although there has been no court or arbitration decision yet, in my view they can for those employees working in close contact with others, unless an employee has a medical exemption or cannot be vaccinated for religious reasons. But it cannot be a religion they adopted the day before, and the medical issue has to be substantive, not trivial. And since it is not up to employees to decide whether or not they work from home, they cannot insist upon doing so in order to avoid vaccination.

Lawsuits for forcing employees back to work

Prior to COVID, employees who were permitted to work from home had cases for constructive dismissal against an employer who ordered them back to work (without providing the requisite months of advance notice required at law). But as a result of pandemic safety precautions, forced closures and stay-at-home orders, employees were permitted or required to work from their homes. Employers can order their employees back to work when those conditions end.

What if they do not? At some point, and we are getting there, employees who are working remotely will be able to take the position that remote work has become a term of their employment and that their employer can no longer order them back to work.

Avoiding lawsuits for employers requiring workers to return 

As a result of the legal reality above, employers must require employees to return to work fairly shortly after being permitted to legally. This is in order to avoid being faced with constructive dismissal claims if they later require workers to return. The prudent option is to permit employees to continue working from home – subject to their signing a contract allowing the employer to require them to return to the workplace on, say, one month’s notice.

Employees earning less in order to work from home

We have heard stories of employers paying employees lower salaries depending upon where they are remotely based. Such a salary reduction would be a constructive dismissal unless a voluntary agreement exists. One option for employers is to provide the choice of returning to the office at the same salary, or providing a lesser salary if the employee chooses to work from home. There is nothing illegal in this and, assuming the reduction is not significant, many employees will leap to accept it. The polls all show that most employees working from home hope to continue to do so and, apart from lifestyle considerations, they save money in meals, transit and wasted time commuting. To put that into perspective, the average commuting time pre-COVID in the Greater Toronto Area is more than an hour each way. With downtown bike lanes being erected over the past year, commuting times will be much worse.

Employers requiring employees to live in their jurisdiction

Many employees permitted to work remotely have permanently moved to more affordable or more pleasant rural or other distant locations. Short of the expense of renting a condo near their workplaces, they will be unable to return to work if recalled. Workers move at their peril. Employers, for their part, even if they permit employees to work remotely, might have a legitimate need to require them to attend work for team meetings, to deal with emergencies or otherwise. There is also the legal issue that employers whose employees live in different provinces or countries could be subject, unintentionally, to the laws of that jurisdiction. As a matter of policy, employers might require employees to remain in the province of the company, or require them to be available to attend work on the following day at any time. Such a requirement will doubtless create future litigation. In the only case to date, a B.C. employee was properly fired for cause for moving to Mexico and refusing to return.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. 

BY HOWARD LEVITT

PHOTO BY HANNAH BEIER/REUTERS FILES

THIS ARTICLE PREVIOUSLY APPEARED IN THE FINANCIAL POST AND IS REPRODUCED HERE WITH PERMISSION FROM THE AUTHOR: https://financialpost.com/fp-work/howard-levitt-here-are-some-ways-employers-can-legally-get-people-back-to-work?video_autoplay=true