Can you fire an employee for refusing to return to the office?

Why HR leaders need to set clear expectations around returning to work

Can you fire an employee for refusing to return to the office?

There’s no denying that remote work quite literally saved the day in the pandemic. Work from home orders allowed companies to remain profitable, people to keep their jobs, and society to remain safe– however, it was never really a "full term solution". Now, as COVID seems to be on the out, employees and employers are left wondering what this means for remote work. Can an employee insist on continuing to work from home – or can they be terminated for a failure to return?

“As we move towards the second anniversary of this pandemic, there’ll be a strong argument on the part of the employer, who implemented the work from home arrangements, that the employee knew that requirement arose in the context of a public health emergency,” Matthew L.O. Certosimo, partner at Borden Ladner Gervais LLP, told HRD. “As such, employers will say that work from home was temporary, linked to the pandemic, not a permanent feature of the employment relationship.”

This argument can be helped if the employer implemented work from home protocols with clarity - and on a temporary basis - having regard to government lockdown requirements and public orders. Facilitating work from home was in the interests of everyone's health and safety – but it’s not a long-term plan.

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“The careful implementation of work from home protocols would have reinforced the temporary nature of the arrangements, and thus the employee wouldn’t really be in a position to assert that it’s now a term and condition of their employment relationship,” added Certosimo. “Therefore, if the employee insisted upon continuing remote work, they would risk being in breach of their employment agreement when ‘things go back to normal’.”

On the other hand, if the employer didn't handle this work from home arrangement with care and doesn't act to reinforce the temporary nature of it as we move into the next phase of the pandemic, they could be facing some challenges.

“Essentially, at some point, employers may find themselves having tacitly agreed to an effective amendment,” Certosimo told HRD. “The key piece of advice for employers is to communicate the temporary nature of the work from home arrangement – explaining that it's necessary because of government and/or public health orders and health and safety practices – and to outline their return-to-work plan. Make it very clear that, as we move into the phase of this pandemic where we will be able to be back in the office, the expectation is that the employees will return and will perform their job duties as before, pre-COVID. That is, unless some other, hybrid arrangement is mutually acceptable, in which case that should be clearly documented.”

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