It is March 2022. Every single covid restriction in Ontario will be lifted very soon. And with that, many employers have recalled some of their employees back to the office.
Is this legal? Can an employer make an employee go back to the office?
It largely depends on what the employment contract says.
However, obviously, most employment contracts did not expressly contemplate pandemic remote work and recall rights.
But the law has a solution for that.
Employment contracts contain both express and implied terms.
Because there are countless policies, rules and practices in any employment relationship, every single term and condition of employment are never contained in a written agreement. That would be impossible. Instead, some terms and conditions of employment are implied.
For example, it is an implied term of employment that employees must not purposefully pour orange juice into the photocopier. No employment contract would ever expressly contemplate such an obvious thing, and thus it becomes implied that an employee should not do that.
The same principle of implied terms and conditions of employment applies when an employer wants to force a remote employee back to the office.
But what exactly is implied in an employment contract about an employer’s recall rights following covid?
The law of implied terms and conditions is straightforward. Terms and conditions of employment become implied based on the need to give business efficacy to an employment relationship (Canadian Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC)). These are terms that the parties would obviously have assumed when they entered into their relationship. They are thus implied based on presumed intention.
To that effect, I believe that courts will determine that both employers and employees alike would have obviously assumed that when employment started that if a once in a lifetime global pandemic happened, and an employee was sent home to work remotely for their safety, they could be recalled when it was safe to do so.
Beware: If an employer allows an employee to work from home for months after it was determined that it was safe to bring them back to the office, permanent remote work could become an implied term of employment due to the employer’s condonation and acquiescence of remote work that is unrelated to covid restrictions.
However, not every employment contract will have an implied term that the employer could force the employee to come back to work in an office once it was safe to do so. I believe that courts will determine it would not have been obviously assumed that if someone was hired for remote work in the middle of the pandemic, they would have to come into the office when the pandemic was over.
Consider this: If an employee was hired to work remotely from a faraway region just in the last two years, it likely became implied in the contract that the employee would never have to work in person in the office far away from their home. It was assumed the employee would not have to sell their house and relocate their family when the pandemic ended. The employee probably only applied for and accepted the job based on the fact they could work remotely permanently.
Nevertheless, if there is explicit language in a newly-hired employee’s employment agreement about remote work (and there are many such contracts post-2020), then the tables turn on the newly hired faraway remote employee. If such an employee signed a contract when they first started working, sometime mid-pandemic, that said they could be called into an office in downtown Toronto when government regulations allowed them to safely do so, then it is not a breach of the contract if the employee is called in from their now-permanent home in Florida or Muskoka.
In all cases. if it is shown that an employee has an implied or express duty to return to the office and they choose not to, this refusal to abide by their duty could constitute insubordination and could be grounds for just cause termination based on a breach of contract. Likewise, if it is shown that if an employee does not have an implied or express contractual duty to return to the office, then a recall could be a constructive dismissal.
In any event, all cases about recalling remote employees and alleged breach of contract/constructive dismissal will be decided on a case by case basis. The courts will analyze all the facts and nuances present at the time the employment agreement was executed to decipher both parties’ intentions (and both parties’ intentions are equal).
Summary: Recalling Employees After Covid
Most employment contracts that predate covid will be silent on remote work and recall rights. Many employment contracts that were written during covid will discuss remote work and recall rights.
If the employment contract was formed pre-covid for in-person work but it is silent on remote work and recall rights, then it is likely that it is an implied condition of employment that the employee must return to the office they worked in before the pandemic.
The opposite is true too. If an employee was hired mid-pandemic to work remotely, it is less likely that a condition of employment to come into work in the office at the end of the pandemic was implied.
All in all, whether or not an employer can force an employee to work in the office depends on the contract. Courts will analyze if there are terms about remote work/recall rights in the contract by examining if there is anything in the contract that explicitly speaks to remote work and/or location and/or recalls, or if there was anything special about the start of the employment relationship that implied that an employee could or could not refuse to be recalled back into an office once covid restrictions ended.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.