With the advent of forced remote working during COVID-19, recent polls suddenly show everybody with a job they can do away from their normal workplace is demanding flexibility from their employer.
The same polls show that more than 66 per cent want “hybrid” work schedules: ones where employees can and usually have to attend at their regular workplace (e.g. office) for a portion of every week or most weeks but have flexibility to work remotely for the rest of the time. Take for example the millennial sitting beside me on the plane while I write this article: she was hired to work 100 per cent remote with only quarterly meet-ups but is excited to move to Toronto where she will be able to go into the office part of the week. Many also want flexibility to work from more distant locations, such as a second home in a different time zone or to work non-traditional hours or schedules.
Many employers keen to accommodate and thus retain and attract these demanding workers (and possibly save on office rental space) are quickly agreeing to such hybrid work requests, often without thinking through the legal consequences.
The good news is that, at least initially, the employer gets to choose where the work is done. Pre-COVID, that was traditionally at the office. Exceptions were rarely granted. Although many employers allowed their employees to work fully or part time remotely due to COVID safety concerns, they retain the right to require employees to return to working full time in the office now that it is safe and legally permissible to do so. Even employees hired during COVID who have only worked remotely can be called back to the office absent a clear written agreement that remote or hybrid working is an ongoing term of employment.
With high demand for hybrid, willing employers need to grant hybrid working rights sparingly where it makes business sense and, most importantly:
•clearly state mandatory working hours/availability expectations as well as location of remote work requirements; and
•explicitly reserve the right to amend or cancel the hybrid work rights.
The first step is to carefully review all the relevant needs of each position to determine what minimum working hours or availability is needed for that position and not “go overboard” in granting broad hybrid flexibility for everyone. When considering non-standard work weeks, remember to check on permitted non-standard schedules with no overtime cost and/or overtime pay exemptions applicable in the province where the employee works.
One common source of misunderstandings involves the employee who, having switched to remote working during COVID, has unilaterally moved to a distant suburb or even another province or country. Again, assuming he or she started living locally, unless the employer agreed to a permanent relocation, the employer can require the employee to attend at the office locally. As a caveat to that, if the relocation happened some time ago, was known to the employer and not challenged immediately, some advance notice should be given.
Where remote work has been in place for a long time exceeding mandatory “lock down” periods, employers must give some reasonable advance notice of the new attendance at work requirements to allow employees to make adjustments to their commuting, child-care arrangements, etc.
Letting an employee work mainly remotely can trigger the application of the employment standards legislation of the remote location. This can then create problems with compliance with foreign or different laws for the employee. So far, the provincial employment standards enforcement agencies take the view that the primary place of regular physical performance of the work dictates which employment standards apply, even to online workers.
For example, an employee who was hired in B.C. but moved to work remotely in Quebec and essentially works “virtually” at the B.C. employer will fall under Quebec’s, not B.C.’s, employment standards. Where an employer is willing to consider permanent relocation, it may make sense to convert the employee to a contractor, which typically has few mandated rights and imposes less payroll-related administrative burden. To do so, employers need to get expert legal advice to ensure the new arrangement is defensible as contracting.
When granting hybrid schedules, we suggest employers:
•Have a framework policy that clearly states all hybrid work is with written permission and the privilege can be withheld or withdrawn by the employer for any reason, with any cancellation or major change on, for example, two- or four-weeks advance notice. Remember, if an employer hires an employee to work hybrid or fully remote post-COVID without reserving the right to change things, the courts are quick to treat this as a binding term of employment. This in turn means a unilateral return to work order effective immediately or very soon is a “constructive dismissal” i.e. a major breach of contract entitling the employee to quit but receive severance;
•Keep hybrid rights out of employment agreements, where they will be more likely to be considered contractually binding;
•Clearly state all core in-office attendance, working hours and availability requirements and the employer’s right to amend these. Mention that remote work entails a high level of trust and that abuse of the privilege will lead to discipline or termination;
•If there is concern about employees working too far away or in other jurisdictions, require that remote work be performed substantially in the city/region or province of hire, with any exceptions approved in writing; and
•Finally, reiterate that the employer retains the right to amend or cancel the hybrid work for any reason, but including the needs of the business and the need to more closely supervise or mentor the employee.
Following these tips, employers should be able to satisfy demand for hybrid work while retaining overall power to control workplace attendance, culture and performance.
This article is a general summary and does not constitute legal advice. •
J. Geoffrey Howard (firstname.lastname@example.org) is principal and founder of Howard Employment Law.