Sponsored by:
Opens in new windowAs Ontario employers enforce return-to-office (RTO) mandates in 2024, many employees are facing uncertainty about their rights – especially those who’ve been working remotely since the pandemic began. Some employees don’t want to return to the office, while others are unable to due to health or caregiving responsibilities.
Employment lawyer Lior Samfiru, co-managing partner at Samfiru Tumarkin LLP, explains what non-unionized employees in Ontario need to know about RTO mandates, severance pay, and their rights. Having successfully represented thousands of clients, Samfiru’s firm is a trusted resource for navigating complex workplace issues like return-to-office policies.
Can my employer require a return to the office?
In the early stages of the pandemic, many employees were required to work from home out of necessity. At that time, once those special circumstances ended, employers generally had the right to call employees back to the office – and refusing to return was often treated as a resignation.
But in 2024, things are different. After years of working from home, remote work may now be considered an established part of the job for many non-unionized employees. If your employer asks you to return to the office after an extended period of working from home, and you refuse, it is no longer seen as a resignation. Instead, if you lose your job because of it, it is considered a termination without cause, and you would be entitled to a full severance package.
“Employers can no longer expect things to go back to the way they were pre-pandemic without any consequences,” says Samfiru. “If your employer insists that you return to the office after you’ve been working from home for a significant period, and you refuse, they may fire you. But they have to provide proper compensation–potentially up to two years of severance pay in Ontario.”
When can you refuse a return-to-office mandate?
While your employer may request that you return to the office, there are situations where you can refuse an RTO mandate. These include:
- Long-standing remote work arrangements: If you were hired specifically to work remotely or have done so for an extended period, remote work may now be an established part of your job. In this case, you may have grounds to refuse an RTO.
- Health and safety concerns: Under the Ontario Health and Safety Act (OHSA), you have the right to refuse unsafe work. If you believe that returning to the office poses a health or safety risk, you can refuse to go back until the issue is resolved.
- Medical accommodations: If a medical condition prevents you from working in the office, you may be entitled to continue working remotely as a form of accommodation. To support this request, you will need to provide your employer with a doctor’s note outlining your restrictions and whether your employer needs to allow you to continue your role from home.
- Caretaking responsibilities: Employees who have caregiving duties, such as looking after children or dependent family members, may also have valid reasons for refusing to return to the office. Employers are legally required to consider remote work as part of their duty to accommodate.
“If you have a legitimate medical condition or family responsibilities that prevent you from working in the office, your employer has to accommodate you,” says Samfiru. “They don’t have the right to penalize or fire you for needing to work remotely. Failing to accommodate isn’t just unfair–it’s a violation of your human rights.”
If your employer refuses to accommodate your situation, carefully weigh the benefits and risks of refusing to return to the office and seek legal counsel before making any decisions. Consulting employment lawyers, like those at Samfiru Tumarkin LLP, can help assess your situation and ensure you understand your rights before taking any action. Legal representation can often compel employers to reevaluate their stance, especially when human rights issues are at play. Visit employmentlawyer.ca for more information.
Can my employer change my role if I return to the office?
Let’s say you’re happy returning to working in the office, that’s great! However, your employer can’t use that as an opportunity to make significant changes to your role without your consent. Changes to your duties, hours, pay or even your job title can be considered a constructive dismissal, which means you’re entitled to severance.
“If your employer tries to change your role, you don’t have to accept it,” Samfiru explains. “You can say no. These changes can be treated as a termination, and your employer owes you full severance. But each situation is unique, which is why it’s important to speak to an employment lawyer. Be smart about your options.”
In the event that your employer tries to force unwanted changes, document your objections in writing via email. And if the changes are substantial, you may have grounds to resign and claim severance. Again, it’s advisable to seek legal guidance before making any decision regarding resignation.
You can also estimate your severance package using the Pocket Employment Lawyer tool.
What happens if my employer offers severance?
If your employer offers you severance because you refuse to comply with an RTO mandate, it’s critical to take your next steps carefully. Don’t sign their offer right away. Instead, request that your employer provide written clarification regarding their expectations and the consequences of not returning to the office. Retain any relevant documents and communication related to your employment and the RTO policy.
Samfiru emphasizes that severance must be calculated fairly when you lose your job. “In Ontario, full severance can be up to two years of pay, depending on your position, length of service, and other factors. Many employers offer less than what employees are entitled to, hoping they won’t know better.”
Importantly, you aren’t legally obligated to sign a severance offer by the employer’s set deadline. You can still pursue full severance even if an initial payment has been deposited into your account, as long as you haven’t signed or returned any termination documents. Consult with an employment lawyer before signing anything, as once you agree to an offer, it’s nearly impossible to go back and claim additional compensation.
If your employer pressures you to return to the office or threatens your job over an RTO mandate, talk to Samfiru Tumarkin LLP, says Samfiru. “And if they won’t accommodate your medical or family responsibilities, you could be entitled to more than you think.”
Before making any decisions, whether it’s refusing a return-to-office mandate, accepting changes to your job, or accepting a severance offer, it’s critical to speak with an employment lawyer to understand your rights and options.
Contact Samfiru Tumarkin LLP, Canada’s largest plaintiff-side employment and disability law firm, to get the advice and compensation you need. Call 1-855-821-5900, email Ask@EmploymentLawyer.ca or fill out an online contact form.
The firm represents non-unionized employees in Ontario, Alberta and B.C., and handles long-term disability denials in all provinces (excluding Quebec). Discover your rights by watching Lior on Ask a Lawyer: Employment Law every Wednesday at 9:00 p.m., and Sivan on Ask a Lawyer: Disability Law every Monday at 9:00 p.m. on CP24.