From human rights claims to tax traps, both return-to-office and remote models create legal exposure
For Canadian employers, the pandemic-era improvisation around remote work is over. Now comes the hard part: defining permanent policies that either bring employees back to the office – fully or in part – or allow them to stay remote.
Return-to-office mandates carry a host of legal challenges, from accommodation requests and human rights obligations to the risk of constructive dismissal. For employers embracing a fully remote workforce, especially across provincial or international borders, the compliance risks become even more complex.
In both full-time office models and hybrid arrangements with attendance requirements, employers must navigate a tangle of legal obligations. “Employers need to really think long and hard about, how is that really necessary for those who are resistant to returning to the office?” says David Whitten, founding partner at Whitten & Lublin in Toronto. “Because just having some blanket return-to-work policy for the sake of it can have devastating impacts on ... efficiency, morale, and productivity.”
Whether employees are being asked to come in two days or five, legal risk persists. Constructive dismissal is one of the most significant threats when returning employees to the office after prolonged remote work.
Jeffrey Mitchell, a labour and employment lawyer at Borden Ladner Gervais LLP, notes that hastily formed pandemic-era arrangements may have inadvertently reshaped employment terms. “The longer the employer waited after the pandemic, [where] restrictions were eased, that became the question: did [remote work] become a term or condition of employment?” he says.
Whitten points to Byrd v. Welcome Home Children’s Residence Inc. In that 2024 case, the Ontario Superior Court of Justice found that recalling an employee who had been working remotely from Europe for over a year constituted constructive dismissal. Mitchell references Hagholm v. Coreio Inc., a pre-pandemic case where the Ontario Court of Appeal found that shifting an employee from part-time remote work to full-time office attendance was a unilateral change amounting to constructive dismissal.
“Whatever way you’re going to return to work, you want to give people ... as much advance notice as possible,” Whitten says. Sudden transitions – such as demanding attendance with little warning – can trigger legal challenges, particularly when childcare or medical needs are involved.
Return-to-office plans must also comply with human rights obligations. “An employer has a duty to accommodate ... to the point of undue hardship,” Whitten, who practises in Ontario, explains. But vague medical notes or general stress complaints won’t always qualify. “You don’t have to accept it. You can challenge it within reason, but you’ve got to be careful how you challenge it.”
Whitten cites a case where an employee presented medical evidence that commuting worsened a back condition – an accommodation request most Ontario employers would likely need to honour.
Alix Herber, a partner at Fasken, highlights Tarek-Kaminker v. Canada (Attorney General). In that case, the Federal Court of Appeal rejected a claim for telework accommodation after finding that the employee had no disability and had not reasonably pursued childcare alternatives. Employers are not required to facilitate mere preferences for remote work, Herber says.
Consistency is also essential. Whitten warns that if one employee is allowed to work from home while others face discipline, legal exposure increases. “The employee that you’re taking the stick to may come back and throw it back at you and say, ‘But [the guy] down the hall is only coming in two days a week.’”
Most lawyers advise that incentives work better than enforcement. “I am a big fan of the carrot approach first,” Mitchell says. “That’s part of the communication: explaining to employees why you want them back.” Employers offering incentives – such as free meals or bonuses – often secure better compliance without the need for formal discipline.
Still, if resistance continues and no valid accommodation exists, progressive discipline may be used – but cautiously. “Our courts don’t like terminations for cause,” Whitten says. Even with documented violations, employers often face wrongful dismissal claims if the response is heavy-handed.
To avoid this, clear documentation is key. “Working remotely ... should be characterized as a privilege, not a right,” Whitten says. Herber agrees, encouraging employers to write policies that explicitly reserve the right to revise work arrangements.
The legal picture becomes more complicated when employers allow some or all employees to work fully remotely.
“Location of work is a big issue,” Mitchell says. Employment law is tied to where the work is performed. If a Toronto employer hires someone who lives in British Columbia, then BC’s employment standards – including different vacation and overtime rules – apply.
Whitten underscores the complexity when international moves are involved by citing an example of an employee moving to South Africa. “You might want to familiarize yourself with South African employment law,” he says. “Because ... if you’re on [that country’s] soil, [its] legislation applies.” This can trigger tax, payroll, and legal liabilities for the employer in that foreign jurisdiction.
Employment lawyers strongly recommend using written agreements with location clauses. “It should specify that the employee will not leave the province ... without notifying you, and you have the right to say no,” Mitchell says.
Herber recalls one employer who discovered a worker had relocated only after hearing unfamiliar birdsong on a video call. “He was in the Dominican and had hired other people who lived there to do his work,” she says – raising serious issues around confidentiality, unauthorized subcontracting, and international compliance.
Cybersecurity and data protection are also major concerns in fully remote models. Mitchell stresses the need for secure networks, defined protocols for data access, and physical privacy at home.
“Your data is going to somebody’s home now,” he says.
Tax compliance adds another layer of risk. CRA guidance, updated in January 2024, affects how employers determine an employee’s “province of employment” – with implications for payroll remittance and home office expense claims. Employers who fail to track employee location may face fines or audit risks.
Occupational health and safety legislation has also evolved. Telework is now explicitly covered, requiring employers to ensure the home workspace meets safety standards. Remote employees using their own equipment may also raise questions about liability for wear and tear or replacement.
Regardless of the model – hybrid, in-office, or fully remote – employment lawyers agree that the best protection is a defensible, documented policy. Whitten urges companies to “socialize” policies through discussions and Q&A sessions. “It’s not just sending it as an email,” he says.
Remote work agreements should also include flexibility clauses. “Build in some notice ... [e.g.,] ‘in the event we require a change,’” Mitchell says. Herber adds that employers should retain the right to adjust the arrangement as business needs evolve: “You want the employers to be able to retain the right to bring employees back into the office.”
Because once remote work becomes the norm, changing course without consequence may no longer be an option.
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Source: Human Resources Director Canada and Canadian HR Reporter
