Can You Force Telecommuters to Return to Work?

Having been allowed, nay required, to work from home during the pandemic, many employees liked the experience and want to continue it. Employers must recognize that the world has changed and be prepared to accommodate these desires. At the same time, there will be situations where you’ll have to stand your ground and insist that employees return to work.

Question: Can you require your homebound employees to return and discipline them if they refuse?

It depends. What may be the first court case to address this question took place in Québec. The protagonist was a university professor who didn’t want to return to Canada after his one-year sabbatical in Hawaii. The university agreed to let him work remotely, as long as he did it from Canada. The professor refused and filed a grievance. It wasn’t just the tropical beaches that made him want to stay in Hawaii. One of his kids was in fragile health and the professor feared that returning to Canada in the midst of the winter COVID-19 outbreak would expose her to infection.

How do you think the case turned out?

Answer: The Québec arbitrator. . . drum roll please. . . sided with the professor. The university’s no-telework-from-abroad policy was reasonable given the tax and insurance difficulties created by these international arrangements. The arbitrator also sympathized with the university’s wish not to set the precedent of letting employees work from wherever in the world they want. But at the end of the day, it ruled that the university should be prepared to consider exceptions to the policy [Syndicat des professeurs et professeures de l’Université Laval (SPUL) and Université Laval, January 28, 2021].

Impact on You: The factors the arbitrator cited in the SPUL case are the ones you should consider when dealing with a telecommuter who doesn’t want to return:

• Is teleworking mandatory for your industry or workplace under current COVID rules?
• Must the employee be physically present to perform his/her work duties?
• Would time zone differences affect the quality of the work?
• Is the request to telecommute based on a legitimate concern to the health and safety of the employee or a household family member?