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Can my employer require me to physically attend work?


Employers have a legislated duty to protect the health and safety of their workers. In the age of COVID-19, this statutory protection is being discussed now more than ever. Many employees are working from home to help slow the spread of the coronavirus. But there are circumstances where employers may still require employees to physically attend work.  

Both the Canada Labour Code and Ontario’s Occupational Health and Safety Act require employers to protect the health and safety of their workers. Provincial employers, for example, must “take every precaution reasonable in the circumstances for the protection of a worker.”  

Generally, an employer has a right to determine how and where an employee is to perform work, subject to any previously agreed-to restrictions, such as in a collective agreement.  Given the COVID-19 crisis, however, occupational health and safety legislation may limit this right. 

“Extraordinary” government measures to ensure social distancing

Governments around the world have implemented a range of measures to minimize the spread of COVID-19. On March 28, 2020, the government of Ontario banned public events or social gatherings of more than five people. “If we are going to stop the spread of COVID-19 now and keep our communities safe, we need to take extraordinary measures to ensure physical distancing,” said Premier Doug Ford, in a release. “I strongly encourage everyone to do the responsible thing and stay home unless absolutely necessary.” 

Governments and public health agencies across Canada are recommending that employers allow employees to work from home if their job allows it. The government of Canada has explicitly directed managers to consider working from home to mitigate the impacts of COVID-19. The government of Ontario has enacted the declaration of an emergency and prevented all “non-essential businesses” from operating unless their staff can work remotely from home .  

In light of these recommendations, depending on the nature of their workplaces and the specific work in question, an employer may be legally required to allow its employees to work from home.   

What should employers do?  

For a wide range of “essential businesses”, from health care providers to grocery stores, the physical presence of most employees in the workplace is necessary. Other employers, particularly in office environments, should implement telework arrangements so that as few people as possible have to physically attend work. Employers should consider which employees are required to be in the workplace and which may reasonably work from home, even if they would prefer their employees to physically attend work. 

In the context of a public health crisis, taking “every precaution reasonable in the circumstances” may involve some amount of inconvenience. Employers should also consider what technological enhancements may be necessary to facilitate work from home. An employer’s failure to do so could amount to a breach of occupational health and safety legislation. 

What if employees have families at home?  

Employees with families at home may also be protected under human rights legislation. As discussed in greater detail here and here, both the Ontario Human Rights Code and the federal Human Rights Act protect employees from discrimination on the basis of their “family status.” Employers have a duty to accommodate employees’ “family status,” including their parental responsibilities outside the workplace, to the point of undue hardship. In some circumstances, an employer’s duty to accommodate an employee with increased parental responsibilities as a result of pandemic-related school closures might require an employer to allow the employee to work from home and/or to work fewer hours.