Return-to-work policies: choosing and implementing best practices

The COVID-19 pandemic has been one of the most universally challenging times for Canadian employers. Almost three years into the pandemic, employers are still faced with difficult decisions—including how to grapple with evolving views on the role of the office and where work gets done. While some organizations are prioritizing or even requiring a full return to the physical workplace, others are managing a hybrid workforce. While we see a range of approaches, many organizations are increasingly managing an uptick in in-person attendance. This is a good time for organizations to examine the state of their workplace policies and to consider whether they are purpose-fit for their evolving workplace cultures, and current health and safety concerns.

This article provides employers with guidance to consider when revisiting, crafting and implementing return-to-workplace policies for employees.

Implement scientifically backed health and safety policies

Over the last several months, governments have dropped most public health requirements related to COVID-19 (masking, vaccination, social distancing, etc.). In response, many workplaces have also removed many—if not all—of the public health restrictions that they had implemented at the height of the pandemic. However, it is important for employers to remember that, while the state of the pandemic has shifted, they continue to have obligations to take reasonable steps to maintain the health and safety of the workplace. To that end, scientific and public health guidance should continue to drive employers’ workplace health and safety policies. Employees’ privacy and human rights should always be respected but must be balanced against an employer’s business interests and legal responsibility to create a safe and healthy workplace¹.

In respect of vaccination policies in particular, there is increasingly a question about whether such policies are necessary and/or effective in preventing or minimizing the spread of COVID-19 in the workplace. Many employers are therefore reevaluating the need for such policies. Vaccination status is personal health information which employers should only be requiring disclosure of if such disclosure is necessary and proportionate. Employers who choose to maintain vaccination policies should ensure that they can demonstrate a need for the policy and that the policy is proportional, scientific- and evidence-based, does not require employees to disclose more personal information than necessary, and provides accommodation for individuals who cannot be vaccinated for reasons protected under human rights legislation. These criteria were satisfied in the recent case Hawke v. Western University, where the Ontario Superior Court of justice ruled that Western University’s proof of vaccination requirement did not violate applicable privacy legislation².

While the case law is always several months removed from the current pandemic environment, we have seen courts uphold vaccination policies when these requirements are met. In the unionized labour context, mandatory COVID-19 vaccination and testing policies have generally been upheld³. However, more recent awards suggest that strict policies requiring employees to be double vaccinated, and which provide for the removal of unvaccinated employees from the workplace if they do not comply, may no longer be reasonable, given scientific evidence of the waning efficacy of vaccination⁴. In the non-unionized context, a British Columbia court recently dismissed a constructive dismissal claim by an employee who was placed on unpaid leave for failing to comply with a mandatory vaccination policy⁵, holding that the employer’s policy was reasonable based on the information available at the time. Caution should be exercised in relying on these decisions, however, given that a) they are always fact-specific (having regard for the nature of the workplace, the terms of the policy, etc.) and b) while decided recently, the facts underlying the decisions arose at different stage(s) of the pandemic.

Update policies to reflect the current state of the workplace

While much of the discourse surrounding the COVID-19 pandemic has focused on health and safety issues, broader approaches to the way we work continue to garner increasing attention. Now is a good time for employers to review other workplace policies to ensure that they reflect the current work environment. These include:

• E-mail and internet monitoring and device-use policies. During the pandemic, social relationships and “off the record” discussions that would previously have occurred in-person migrated online. Regardless of the approach taken to in-person work, employers should remind employees of their internet, e-mail, and telephone monitoring and use policies—particularly over seemingly private channels like Microsoft Teams. This is especially important in light of Bill 88 which, among other things, imposed a requirement on employers of 25-plus employees to have a written policy with respect to electronic monitoring of employees by October 11, 2022⁶.
• Workplace bullying and harassment policies. Return to in-person work after years of limited interpersonal contact could result in interpersonal issues between employees. We recommend reminding employees of workplace bullying and harassment policies as they return to the physical workplace. Employers should also ensure that their policies are broad enough to address cyberbullying and harassment, which may not be as visible to employers in the physical workplace but still carry the risk of liability⁷.
• Privacy and cybersecurity policies. Now is an appropriate time to ensure that employees are aware of and adhering to applicable privacy and cybersecurity policies. In particular, it is important to inform employees that any ad hoc practices (such as using personal e-mail addresses or personal electronic devices for work purposes) that were implicitly or explicitly condoned during the pandemic due to necessity are no longer permitted.

Respond to refusals to return to work

Many organizations that are requiring a return to the office (either on a full-time or hybrid basis) are being met with resistance from some employees. We are often asked whether an employer can mandate that their employees return to work. The answer is that employers generally have the right to require employees to return to the office. However:

• Employees who are refusing to return to work based on a legitimate concern about the health and safety of the workplace may follow the work refusal process set out in occupational health and safety legislation; and
• Employees with disabilities that prevent them from coming into the office must be accommodated to the point of undue hardship. Employers may request medical information to confirm the need for accommodation. Note that employee preferences to work from home do not need to be accommodated under human rights legislation.

It is important for employers to promptly address (including through progressive discipline) employees who are choosing not to return to the office without approval. Employees who are permitted to continue working from home in the face of a policy requiring in-person attendance may be able to argue that, at some point, the right to work remotely became a term of their employment.