Can I work from home during Ontario’s stay-at-home order?

As examined by the CBC in one of their recent articles, it appears that some employees at Costco’s regional offices are being asked to come into work despite there being a province-wide Stay-At-Home Order requiring all Ontarians to remain home, save for a few exceptions. Actions such as these are understandably leaving a lot of employees scratching their heads about whether their employers can do something like this, and what their legal rights are.

Do I have a right to work from home during the stay-at-home order?

The central issue revolves around whether the nature of an individual’s work requires attendance at the workplace. The Government of Ontario is telling us that, if a worker does not have to go into work to perform their job, then they must work from home.

While it looks like some leeway is afforded to employers to determine whether a particular job function requires a physical presence in the office, it cannot be said that they have unfettered or unlimited discretion in making this determination. This is especially so in cases where an employee has already proven to their employer that they are perfectly capable of performing their job from home over an extended period of time, which is a common scenario given the large number of employees working from home due to COVID-19.

An employment lawyer at Samfiru Tumarkin LLP joined Newstalk 580 CFRA in Ottawa discussing employee rights and the ability to work from home during the January lockdown.

What can I do if my employer is trying to force me to return to the workplace?

If an employee is being asked to go into work despite being able to perform their job from home, this could give rise to a breach of the Occupational Health and Safety Act . An employee in this situation might want to consider filing a complaint with the Ministry of Labour. Prior to doing so, however, the employee must attempt to have the situation addressed directly with their employer. If that fails, then complaining to the MOL could provide a path to having the breach investigated and remedied.

Furthermore, employees need to remember that they do not have to accept unsafe working conditions, nor do they have to condone any fundamental changes to the conditions of their employment. This could relate to the type of work itself, or the location in which the work is performed. If an employee is confronted with these kinds of changes, they might have a claim for constructive dismissal.

A constructive dismissal allows an employee to treat their employment as being terminated by actions taken by their employer, without the employee’s permission. The result is that the employee can resign with a full severance package, which is calculated by examining a number of factors. Before you resign, it is extremely important to contact an Ontario employment lawyer at Samfiru Tumarkin LLP to explore your options and the best course of action.

Conclusion

Whichever way you slice it, an employee has several protected rights under the law. Companies that attempt to unreasonably force their workers back into the workplace in violation of a Government Order can certainly find themselves facing some serious legal issues. Employees who believe that their rights have been violated, or that the terms of their employment are being altered without their consent, are encouraged to speak to a lawyer who can advise them of their specific options. No employee should ever have to choose between their health and their job, nor should an employee ever be forced to act in a way that goes against a Government Order.

For further information about an Ontario employee’s rights and ability to work from home during the January lockdown, catch our recent interview with Newstalk 580 CFRA in Ottawa.