This Article can be found in the Vancouver Sun.
Polls show that more than 66 per cent of employees want hybrid schedules: The flexibility to go into the office part of the week and work remotely on other days. Many employers keen to accommodate and thus retain and attract these workers (and possibly save on office rental space) are accepting hybrid schedules without considering the consequences.
Employers get to choose where the work is done. Pre-COVID, that was traditionally at the office. Employers allowed/required their employees to work fully or part time remotely due to COVID, but retained the right to require a return to the office now that it is safe and lawful to do so. Even employees hired during the pandemic to work remotely can be called to the office absent a clear written agreement that remote or hybrid working is an ongoing term of employment. Such remote working arrangements were clearly temporary to meet workplace safety concerns and public health requirements. However, if remote working is allowed to continue, employees will soon be able to argue remote work has become a term of employment absent explicit employer communications excluding that conclusion.
One common source of misunderstandings is the employee who worked remotely and unilaterally moved to a distant suburb or even another province or country. Assuming they started their employment working locally, the employer can require the employee to return to work at the local office. As a caveat to that, if the employee unilaterally relocated months ago and this was known to the employer and not challenged, some advance notice of return to the office should be given. Indeed, for any remote work arrangement that has exceeded mandated “lockdown” periods, employees are entitled to receive some advance notice of return-to-office work requirements to allow them to adjust their own commuting, child-care arrangements and other needs.
Letting an employee work out of province can trigger the application of the employment legislation of the remote location. This can create compliance problems with foreign or different employment laws for both the employee and employer. For example, which statutory holidays apply? So far, the governments take the view that the primary place of regular physical performance of the work dictates which employment standards apply, even to online workers. An employee hired in B.C. who moves to work remotely from Quebec will fall under Quebec’s legislation.
The first step when “going hybrid” is to carefully review the needs of each position to determine the minimum working hours or availability required rather than broad policies allowing everyone to expect hybrid schedules.
When granting hybrid schedules, have a framework policy that clearly states all hybrid work is with written permission and the privilege can be withheld or withdrawn by the employer for any reason. Remember, if an employer hires an employee to work hybrid or fully remote post-COVID without reserving the right to change things, the courts are quick to treat this as a binding term of employment. This in turn means a unilateral return-to-work order effective immediately or very soon is constructive dismissal, a major breach of contract entitling the employee to quit but receive severance.
Employers should keep hybrid work rights out of employment agreements, where they will be considered contractually binding. Conversely, employees who believe they are being hired to work remote indefinitely should include it in their letters of hire or employment agreements.
In your hybrid policy, clearly state all core in-office attendance, working hours and availability requirements and the employer’s right to amend these or withdraw hybrid privileges on minimal advance notice, e.g. four weeks. Mention that remote work entails a high level of trust and that abuse of the privilege will lead to discipline or termination. If there is concern about employees working too far away to attend in person events or triggering application of other laws, require that remote work be performed substantially in the region or province of hire.
Following these tips, employers should be able to satisfy demand for hybrid work while retaining control over workplace attendance, culture and performance.
If you want more information on this topic, you can contact us at:
Geoffrey Howard: ghoward@howardlaw.ca
604 424-9686
Sebastian Chern: schern@howardlaw.ca
604 424-9688
