Canadian Lawyer

www.canadianlawyermag.com 53 LEGAL REPORT EMPLOYMENT LAW From human rights claims to tax traps, lawyers warn both return-to-office and remote models come with serious legal exposure Return to office versus fully remote F O R CA N A D I A N e m p l o y e r s , t h e 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, espe- cially across provincial or international borders, the compliance risks become even more complex. The legal weight of return-to-office policies In both full-time office models and hybrid arrangements with attendance requirements, employers must navigate a tangle of legal obli- gations. "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 employ- ment 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 atten- dance 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. Accommodation requests and human rights risks 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." W h i tt e n c i t e s a c a s e w h e r e a n employee presented medical evidence that commuting worsened a back condition – "Just having some blanket return-to- work policy for the sake of it can have devastating impacts on ... efficiency, morale, and productivity" David Whitten, Whitten & Lublin

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