Return to the office: the pros, cons and legal hurdles

Many employers want to bring workers back full-time, but there are risks

Return to the office: the pros, cons and legal hurdles

The business pages have been filled with articles chronicling announcements by famous firms like Amazon requiring their employees to return to work full time at the office (aka “RTO” for return to the office). In response, social media channels -and job search resume boards - overflow with complaints from disgruntled employees objecting to those decisions. This article will firstly discuss the pros and cons of RTO, then focus on the potential legal issues that arise when implementing RTO. 

For the vast majority of “white collar” employers, the exigencies of staying in business during COVID lockdowns led them to mandate working from home (WFH) for at least a few months and, in many cases, this continued for several years. During this time, many migrated to a “hybrid” model, with a minimum number of days in office per week. Others started hiring fully remote workers to access talent in other places. Many were pleasantly surprised to find that their businesses were able to operate fairly efficiently on this basis. Initial studies even claimed that employee productivity increased during WFH but more in-depth researchhas found that full time WFH is either neutral or negative for productivity. 

Most employees, on the other hand, immediately took to WFH, despite the risk that some employees struggled to set boundaries on their working hours. Over time, some came to miss the social connections of the office. Post-COVID surveys consistently show that roughly two-thirds of white-collar employees prefer working two to three days a week from home, with a preference for having the flexibility to decide when to WFH. The rest are split between those who prefer RTO four or five days a week and those who want full time WFH.  

In my practice, what I noticed was employees who were put on WFH but then allowed to stay on it either full time or for most of the workweek for up to three years post lockdown came to see WFH as a core entitlement. In one case, an employee hired to physically support the operation of the employer’s equipment at a large customer site and who had always worked full time at that site before COVID, simply refused to accept the customer-imposed RTO requirement. 

Given these preferences, it is fair to say that employers implementing full-time RTO are likely at risk of losing employees who are able to find another job offering a hybrid work schedule. In particular, experienced employees with significant personal obligations at home, such as child or elder care, will be the most likely to resent an RTO edict.  

Thus, before implementing RTO, it is worth considering if the risks of turnover exceed the gain or whether adjusting the parameters of hybrid - say from three days a week to four in-office achieves most of the benefits while reducing the risk of losing experienced staff. 

So why have so many well-known firms implemented RTO? Most cite the following advantages: 

  • Enhanced opportunities for collaboration and mentoring: it is fair to say that newer employees benefit most from opportunities to meet and interact with coworkers and junior employees have easier access to guidance and mentoring from experienced colleagues when working together at one worksite. 

  • Deeper communication and thus enhanced quality of collaboration through live in-person interaction as opposed to email, messaging and videoconferencing’s more limited and formal interaction. 

  • Enhanced culture, loyalty and retention: It has been my observation that “virtual firms” with very little in-person interaction tend to have lower levels of attachment and higher turnover than firms where employees work together most of the time. One HR executive client observed: “As we added new hires working only hybrid, we saw the impact of losing the culture born out of our pre-COVID in-person work environment.” Of course, this gain may be offset by the departure of disgruntled employees who object to RTO. Several US-based studies confirm that women, particularly those with family care obligations, other minorities, and senior managers are the most likely to leave in response to an RTO edict. 

  • For old-school managers, the advantage of being able to physically verify that employees are working and not dealing with personal matters during the workday. 

That being said, a customizable hybrid regime can retain critical collaborative time working together in office, while improving retention and can even be a selling point when competing for talent. 

Return-to-office legal issues 

The starting point in any legal analysis of implementing RTO is that, generally speaking, the employer can decide how and where work is done. That certainly applies to any new hire. Where employees were hired pre-COVID and originally had to work full-time in the office, it is, generally speaking, possible to give advance notice of a full RTO or even reduced WFH regime will taking effect without triggering any liabilities. But there are exceptions to the rule, including: 

  • An employee who was hired during the remote working era with no express stipulation that they could be recalled to the office full-time: generally speaking, Canadian courts will treat de facto working arrangements such as WFH (full or hybrid) as contractually binding unless the employer’s right to require RTO was clearly stated. While an employee hired on WFH who can conveniently come into the office and who does not suffer any other major negative impact on RTO may not be able to claim “constructive dismissal” (an employer’s unilateral material negative change in terms of employment that allows the employee to quit and claim severance), others who need the flexibility for personal reasons or simply live so far away that the commute to the office is onerous probably can claim constructive dismissal, unless substantial advance notice is given. 

  • For employees hired to work entirely remotely who live in other cities or even countries - whether they started working there or were allowed to move there - obviously RTO requirements are not feasible. If the employer now wants such employees to work in-office, they will have to offer them a local office or terminate and pay severance. 

  • Some employees may be able to show that, due to medical conditions or family care obligations, they are entitled to continue remote working as a form of “reasonable accommodation” required under human rights legislation. In Canada, a disabled employee who can show they cannot realistically come into work every day - for example, they need dialysis during the day, which is not readily available near work - will usually be entitled to reasonable accommodation in the form of WFH. However, depending on the medical information, the employer may be able to require some in office work - for example, if dialysis is only required three days a week, the employer could ask the employee to come into the office on the other two days.  

  • Family care obligations are more complicated. In BC, case law requires the employee to show they have some kind of extraordinary need to care for children or other family and that there is no other practical way to meet that need than allowing WFH. Elsewhere in Canada, the onus is on the employer to demonstrate that it is an “undue hardship” to accommodate normal child and eldercare obligations with full- or part-time WFH. 

One scenario RTO employers face is the employee who during COVID and the subsequent WFH era chose to relocate to a place from which commuting to the office is onerous in time, cost and/or stress. Only if the employer approved or knew of and did not object to the relocation can the employee object to an RTO mandate. 

Always provide advance notice 

Even where the employer has the right to require RTO, it is simply good HR practice to give plenty of advance notice, with two months as a rough minimum. RTO or even increased in-office requirements may require an employee to make major new care arrangements for children, family, or pets. The employee may also have to research or acquire new transportation options in order to make the commute into work.  

Even if you plan to amend your default hybrid schedule from two days a week in-office to three or four, it makes sense to give employees advance notice. This allows them to make adjustments in their life and routines with less stress. It also reduces the risk of a legal claim. 

For employees above who have an implied or explicit right to work remotely, and for whom RTO would be a major burden, it may be legally possible to impose RTO, but only on the same advance notice that would be required of termination of employment. 

While overall data still shows most employers are offering hybrid work schedules, there has been an uptick in RTO mandates. It is too soon to say if these will stick or whether some will later revise those policies in favour of limited hybrid. If your organization is planning to implement RTO or substantially reduce flexible work options, get legal advice before you announce the change. 

J. Geoffrey Howard is the founder of Howard Employment Law in Vancouver. 

Latest stories