Howard Levitt: What the federal government’s return-to-work directive means for non-union employees

financialpost.com:

By Howard Levitt and Jeffrey Buchan

The announcement from the Government of Canada earlier this month that federal employees will be required to work from the office at least three days a week starting in September 2024 has many asking the question: can my employer make me return to the office, too?

This has become a common concern amongst employees in Canada, as many major businesses have already made the decision to require their employees return to the office, including the National Bank of Canada,Amazon, CIBC and others.

Unsurprisingly, many of the large federal unions have already launched challenges to the government’s recent directive and have encouraged public sector workers to do the same. Tens of thousands of federal workers began working from home at the start of the COVID-19 pandemic, many of them non-unionized and now taking issue with this new requirement.

The truth that many of these employees do not want to hear is that if they are subject to an employment contract that stipulates they must be in the office, the government can require them to return to in-office work. This is true even if they were allowed to work from home as a temporary measure due to the COVID-19 pandemic.

However, if there is no employment agreement that requires the employee to be in the office and the employee has been working remotely for such an extended period that it has become an implied term of the employment relationship, the employer cannot force the employee back to the office without it triggering a constructive dismissal. Further, the employer cannot punish the employee for the decision to work remotely, via a demotion, shorter shifts, or a reduction in pay.

If an employee was hired as a remote worker, or working