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Are you allowed to refuse to return to in-person work? A lawyer explains

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Throughout the COVID-19 pandemic, many people have been working from home and a survey by the Business Development Bank of Canada last year found 55 per cent of employees would like to continue to work from home even when the pandemic is over.

However, one Toronto employment lawyer says the time for working at home is quickly coming to an end.

“Everybody's going to be calling people back to work soon enough, so employees enjoy the ride you've had, but don't expect it to last," said Howard Levitt, senior partner at Levitt Sheikh.

The federal, provincial and Toronto municipal government have all been sending signals they want their workers back in the office and Ontario announced it wants its 60,000 employees back in the workplace three days a week by April 4. 

Levitt contends that many companies have been waiting for the government to take the lead and demand its workers get back to the office and businesses are expected to follow. 

"So when the government orders people back to work, employers are going to breathe a big sigh of relief. They are going to say now we have leadership and we are also going to do it," said Levitt. 

Levitt said that studies have shown on average employees who worked from home worked less than when they were in the office. 

"Canadians workers working from home were 21 per cent less productive per hour and the longer they worked from home the lower their productivity was," said Levitt.

At the same time, other research suggests that remote work has been highly beneficial for some employees, especially women who were more likely than men to leave their jobs during the pandemic.

A Concordia University study found that flexible work hours could benefit caregivers and employers, allowing equal opportunities for all employees.

"Given the social expectations remaining around the role of women, and the additional work they have as family caregivers, teleworking is advantageous in that women can avoid commuting to work, save time, and be at home if ever there is a family situation that urgently demands their attention," researchers said in the study.

A 2021 study released by Statistics Canada also found that most new teleworkers reported being at least as productive as home as they were going into the office.

However, according to Levitt, regardless of a worker’s productivity level, if someone is asked to come back to the office and refuses, they can be fired.

“If they don't go back to work, they have abandoned their job and they will get no severance pay," said Levitt.

Levitt also said employers are allowed to let some employees work from home, but order others back to the office.

"Maybe Joe and Shirley are great working from home, but Sarah and Sam not so much. A company can say ‘I’m going to let those people work from home, but not those people,’ and all of these actions are entirely legal strategies," said Levitt.

Levitt cautions that companies can't wait too long before ordering employees back to work or employees could argue it's become a condition of their employment. 

During the pandemic some people changed their lifestyle and moved out of cities to small towns and cottages and many will be hoping they can continue to work from home on a full-time or part-time basis, but it will depend on what their employer allows. 

In February’s Statistics Canada Labour Force Survey, nearly a quarter of workers reported that they have been working exclusively at home. A little over 30 per cent are reporting working part-time at home and part-time in the office.

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