As the coronavirus pandemic recedes, employers planning a return to the office have several legal issues to consider.
Hugh Christie, a Toronto-based managing partner at Ogletree, Deakins, Nash, Smoak & Stewart, suggests employers first ensure their offices are properly set up for each department, as well as the personal situations of employees, such as workers with young children or those living with elderly parents.
For employers with employees who moved to different provinces or countries while working remotely, this raises the question of which legal jurisdiction the employee falls under, he says. “The laws and rights of the employee are quite different between countries.”
Christie referred to the case of a U.K.-based employer that allowed an employee to return to Vancouver to live with their parents when it implemented remote working during the pandemic. However, the employer doesn’t have a presence in Canada. “In this instance, it worked out, but if it doesn’t [work out] going forward what happens to the employment relationship and whose laws apply?”
A move to a new legal jurisdiction could also affect an employee’s taxes, he says. “Usually, countries base the obligation to pay income tax on residency, not on where the job is. If the person has moved to Nova Scotia, for example, it’s only upon filing their personal income tax return and changing their address that triggers the obligation to pay the provincial part of tax as well as any health taxes.”
He recommends employers also consider establishing a remote work agreement. “Lots of our employer clients have [this agreement] because if it’s properly drafted it will say, ‘Can we reserve the right on reasonable notice to ask you to come back to the office?’ And that’s something to [help] manage risk for the employer.”
By giving reasonable notice, Christie says employers can make the return to the office as smooth as possible. “In Ontario, an employee who encounters a fundamental and unilateral change in their employment situation — like coming back to work after working at home for two years — is entitled to reasonable notice or pay in lieu of that notice. If they’re given reasonable notice, the financial risk to the employer is reduced quite considerably.”
He also suggests employers ask for feedback from employees, so the return can be adjusted to individual circumstances. “Have a deep discussion with each employee. Try and work with people who are particularly at risk or people who may not seem objectively at greater risk, but are just a little more spooked and work with them to find a solution. Maybe it’s simply not possible for them to come back to the office, but maybe it is if you accommodate them.”