Back to the Office: Legal Considerations for Employers
April 2022 - 3 min read
On March 1, 2022, the Province of Alberta entered stage 2 of the Government’s three-stage process for easing COVID-19 restrictions, which resulted in the lifting of nearly all remaining public health restrictions, including Alberta’s mandatory work-from-home order. As we enter the next phase of this process, many employees have returned to work in person. This raises several legal issues that employers should consider when transitioning employees back to the office.
Remote Work Policies
Although public health authorities have deemed it safe to return to work in person, many employers are still considering implementing fully remote or hybrid work models for their workforce. As a general rule, employers have the power to dictate where and how employees complete their work, and these expectations are typically outlined in employment agreements or workplace policies for new and existing employees. Workplace policies governing remote work should include:
- requirements for remote arrangements (such as equipment, internet access, security, etc.);
- details on productivity monitoring;
- expectations regarding privacy and confidentiality; and
- location and access information.
Regardless of the implementation of such policies, employers should remain aware that some employees may refuse to return to work and ask for accommodation in the form of a continued remote work arrangement. Such accommodation requests may involve health concerns or family obligations. Employers facing such requests must accommodate employees who refuse to return based on a ground protected by the Alberta Human Rights Act to the point of undue hardship. What constitutes undue hardship is highly contextual and depends on factors such as the cost of the accommodation and the feasibility of implementing the employee’s accommodation request. It may be more challenging for employers to establish undue hardship if employees are fully set up and have been working remotely effectively over the last two years.
Recalling Unvaccinated Employees
With the Restrictions Exemption Program rescinding, many employers are considering recalling unvaccinated employees back to work. This includes:
- unvaccinated employees who were permitted to work remotely; and
- unvaccinated employees who were placed on temporary leave or layoff due to vaccination status.
Employers must follow the Alberta Employment Standards Code requirements for recalling employees after a temporary layoff, which includes providing employees with a written recall notice that they must return to work within at least seven days from the date of the notice. If employees do not return to work within seven days of being served with a recall notice, the employer may be permitted to terminate the employment without termination notice or pay. For employees who have been working remotely, there is no strict requirement for how employers recall them to work in-person, but there are certain practical and timing challenges that inevitably will be relevant – just one example is where long-term working from home has resulted in the employee developing a legitimate family-related need for continuing that arrangement, which can in certain narrow cases involve some complex considerations depending on the circumstances.
In a unionized environment, employers need to review the collective agreement for recall rights following a temporary layoff, and termination pay may still be owed when recall rights expire.
Whether unionized or not, employers should seek legal advice before terminating an employee on leave or temporary layoff.
Mandatory Vaccination Policies
The easing and in some cases removal of government-initiated vaccination, masking and related requirements also reduces the ability for many Alberta employers to rely on Government vaccination laws to justify workplace vaccination policies. Over the past year, many employers have relied on mandatory vaccination laws for indoor spaces to justify workplace policies requiring employees to be vaccinated. Albertans are no longer required to show proof of vaccination to gather in groups and participate in activities indoors, there is a risk that mandatory vaccination policies will become less reasonable and harder to justify depending on the circumstances. Of course, some employers may still be able to justify mandatory vaccination policies in certain high-risk environments (for example, long-term care or medical facilities).
Employers that cannot point to a genuine reason for requiring employees to be vaccinated may open themselves up to a human rights complaint for excluding or punishing certain employees for vaccination status. These employers may consider suspending their vaccination policies to allow for flexibility in the future rather than rescinding them.
It is recommended that employers seek legal advice to ensure that their organization’s vaccination policies continue to align with their operational requirements.
These are only some of the issues that employers are facing as we enter the next phase of the COVID-19 pandemic response. Employers should be fully informed of their legal obligations when transitioning employees back to in-person work in order to avoid exposure to potential human rights complaints. Please contact Austin Ward or any member of our Labour + Employment Group for assistance with remote work policy development, accommodation requests, termination advice, or any other issues relating to returning employees to work.