Return to work mandates have, hands down, created the great divide between employers and employees

While most of my columns as of late have been laser focused on the impact of tariffs to employment law in this country, I would be failing you if I didn’t share a meaningful update to the law surrounding remote work.

I have written extensively about return to work mandates post-COVID, including the hybrid models rolled out by tech giants like Apple and Meta. Earlier this year, I wrote about the reactions to the immediate to work mandate impacting two million federal workers in the United States.

Return to work mandates have, hands down, created the great divide between employers and employees.

But the recent Alberta case of Nickles v. 628810 Alberta Ltd. provides a common sense analysis to the legality around requests for employees to return to the office.

Margaret Nickles was the office manager of a vein clinic for 37 years. She predominately worked from home for the entirety of her employment. Nickles did come into the office on occasion and when needed but usually at her own discretion.

There was a change in ownership and the new owner rolled out a mandate to “return” employees to work in the office. Nickles objected as she always worked remotely. Her role was never “in office.”

In response her employer gave her a three-month notice of the change but insisted she must, after the three months, come in to work in office. When Nickles refused to agree, the employer further revised its offer suggesting she could work two-and-a-half days in the office per week. But the employer reserved the right to alter the days in office to full-time at some later point.

Again, Nickles refused to agree and she sued her employer for constructive dismissal. She brought an application for summary judgment to resolve her case.

In court, Justice Farrington noted the distinction between Nickles’ employment scenario and that of a COVID working arrangement by finding, “The COVID return-to-work template does not fit this paradigm. This was an arrangement where the work was always from home.”

The judge went on to find that the work-from-home arrangement was an integral part of Nickles employment contract and she was entitled to reasonable notice of the change to that term.

On that point, Justice Farrington found, “The notice given was less than three months for a 37 year employee. I am satisfied that there was a constructive dismissal.”

While the court didn’t have enough evidence to determine what Nickles damages are, one can rest assured that they will be substantial given her 37 years of tenure.

The take away from this case is that any employee that commenced a position by working remotely (and not in response to COVID), can reasonably argue that the remote element of the job is integral to the employment contract. This means true remote employees can resist sweeping return-to-work mandates or hybrid models.

However, if you principally worked in person and were permitted for a period of time to work remotely due to COVID, the court may not see it the same way and view a return-to-work mandate as being a reasonable step for an employer to take.

Either way, an employer should provide reasonable notice of a return-to-work mandate. For a 37 year employee like Nickles, three months simply did not fit the bill.

Have a workplace problem? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

The content of this article is general information only and is not legal advice.

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