Canadian Lawyer

54 www.canadianlawyermag.com LEGAL REPORT EMPLOYMENT LAW an accommodation request most Ontario employers would likely need to honour. Alix Herber, a partner at Fasken, high- lights Tarek-Kaminker v. Canada (Attorney General). In that case, the Federal Court of Appeal rejected a claim for telework accom- modation after finding that the employee had no disability and had not reasonably pursued childcare alternatives. Employers are not required to facilitate mere prefer- ences 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.'" Carrot, stick – or in between? 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 compli- ance 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, "The longer the employer waited after the pandemic ... that became the question: did [remote work] become a term or condition of employment?" Jeffrey Mitchell, Borden Ladner Gervais LLP 16.2% of Canadians were working from home in February 2024, down from a pandemic peak of 40%. The number of Canadians working from home dropped from 5.7 million in January 2021 to 3.1 million in early 2024. Ottawa-Gatineau had the highest remote work rate in 2023, with 26.2% of workers working from home. Only 27% of employers were actively enforcing return-to-office policies as of 2023. Hybrid work rose from 6% in 2021 to 14% in 2023, even as full-time remote work declined. In 2023, Canada had the highest rate of work from home globally, according to a worldwide survey. REMOTE WORK IN CANADA: BY THE NUMBERS Source: HRD Canada, HCAMag, Canadian HR Reporter, StatCan (2021–2024)

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