How should employers handle accommodation requests in the great return to work?
Employees working from home during the pandemic have become accustomed to the more flexible lifestyle – and as such are a reluctant to give it up.
However, with return to work mandates on the rise, many employers are having to choose between letting their people work remotely or face a talent walkout. It’s something that organizations really can’t afford in a candidate-led market.
“As the corporations and companies are directing their employees to come back to the office on a more consistent basis, you're seeing employees push back on the basis of accommodation,” says Michael Horvat, partner at Aird & Berlis.
“Whether it was down to stress or travel or family status, people made decisions during COVID and were essentially accommodated. This wasn’t because the companies necessarily wanted to accommodate them, but because they had to – not in a human rights sense but from a business circumstance because they needed to continue operating.”
In-office attendance raises human rights issues
Now, however, companies are finding it difficult to ‘put the toothpaste back in the tube’, so to speak.
“Organizations are having difficulty from both a consistency perspective – or employee retention – and employees having actual restrictions which prohibit their in-office attendance, which is where accommodation comes in,” Horvat tells HRD.
The issue of leverage is also on the table depending on the economic circumstance, and which party – the employer or the employee – has more bargaining power.
“There’s also the human right accommodation portion to consider, which is proving more difficult to manage,” says Horvat. “That’s because companies have demonstrated that employees can work from home over the pandemic, with 18 months’ worth of evidence that the employee could be accommodated. And so it’s difficult to say that they can’t anymore - difficult but not impossible.”
Would return to office become constructive dismissal?
Say, for instance, that an employee moved during the pandemic – relocated to a whole other province or country, how should an employer handle return to work mandates? According to data from CBC, 89,000 Canadian moved away from Ontario during the pandemic – with 21,000 of them heading to British Columbia. Horvat says the request still has to go through the same accommodation process – which is whether or not there’s any human rights grounding for the exception.
“From there, the employer has the authority to direct the employee to return to work under the terms of their contract,” says Horvat. “The interesting question, which hasn’t really been adjudicated yet, is if a company directs an employee to work from home, is that in itself a constructive dismissal – but no one rejected it because it was required by the government?”
That’s the million-dollar question Horvat thinks employers will be grappling with in the coming months. Would this constitute constructive dismissal – being sent away from the workplace? Or is that an organizational policy that the employee is choosing not to respect and follow?
“That's where the secondary question is,” adds Horvat. “The employer has the right to say an employee has to work in the office – but is that return itself a constructive dismissal or is it determined condition of employment that can be enforced?”
Office return challenges employee retention
And, again, while there’s no clear answer to this as of yet – the economics of the situation have to be considered. Canada, as with the rest of the world right now, is going through a massive talent shortage. According to data from Manpower, 77% of employers globally are experiencing issues sourcing new talent – making this the worst talent shortage in 17 years. This means return to work mandates can’t really be a ‘take it or leave it’ offer on the employer’s behalf.
“There’s certain businesses that’re seeing remote work as a perk which they can sell to induce talent to come to them,” adds Horvat. “Candidates may have the option of one company that requires they go into the downtown office five days a week and one that lets them work from home.”
Businesses are free, of course, to implement any sort of working model they want. After all, we’ve seen lots of instances of high-profile companies insisting on working in-office. The question isn’t whether you can demand an employee come into work five days a week – it’s whether that’s going to position you as an employer of choice.
“You have to decide how you want to structure your business,” says Horvat. “Then you have to provide an implementation of a policy and procedure that follows that structure – because any changes thereafter are always going to raise constructive dismissal issues. And if you decide that you want to have a more traditional approach, then implement it with the understanding that it’s going to come with short-term consequences.”
