Last time, I wrote about policy and procedure issues arising from the pandemic-driven “working from home” employment scenario. I thought I would take the topic a little further and let you in on a development about which I’ve recently become concerned.
I’ve had a number of recent client discussions involving the situation of employees who are resisting returning to the workplace, specifically because they have an ill family member or perhaps a young child for whom they are now providing care. In essence, they don’t want to return to work because – at least in part - doing so would mean having to find another person to provide care.
This set of circumstances perhaps was inevitable the longer people were permitted to work from home. Few people can effectively segregate their work and home lives when both are taking place in the same physical space, and caring for family members is something a lot of people deal with on a day-to-day basis.
The problem for employers is that they find themselves with employees who have now taken on family care responsibilities, and who don’t want to return to in-person work. Some are claiming that the employer’s insistence on a return to in-person work amounts to “family status” discrimination.
Family Status Discrimination
An employee who believes he/she has been discriminated against on the basis of “family status” may file a complaint with the B.C. Human Rights Tribunal. The claim would be, in essence, that because of some family-related issue, the employer is acting towards him/her in a discriminatory fashion.
As an aside, when “family status” was added to B.C.’s Human Rights Code as a ground of discrimination, it seemed like a catch-all category which would produce a multitude of complaints about employers not accommodating employees’ family situation. That was certainly my fear. I can recall an instance in which an employee was complaining of having been discriminated against because he/she wasn’t given a Friday off work to take a child to a hockey tournament in another city.
The courts effectively stepped in and pretty well circumscribed the scope of the “family status” protection. It is now established that a prima face case of discrimination on the basis of “family status” is only made out when…
1. a change in a term or condition of employment is imposed by the employer, and
2. that change results in a serious interference with a substantial parental or other family duty or obligation of the employee.
The first condition is, in my view, the most significant. Unless the employer has imposed a change to the status quo of the employee’s terms and conditions of employment, a “family status” discrimination complaint cannot succeed. Effectively, by standing still the employer is not discriminating. It’s this condition that is significant in these “working from home” scenarios and which the pandemic has complicated.
Has the Employer Imposed a Change?
Look at it this way… if the employee was always (pre-pandemic) required to attend at the workplace to perform his/her duties, that status quo would have to have been altered for an order to return to work (post-pandemic) to have amounted to a “change imposed by the employer”. Put another way, if the employee was always required to work on-site, ordering the employee to return to working on-site shouldn’t amount to such a change.
What about the fact that the employee was allowed to work from home during the pandemic? Could that alone be an alteration to the status quo, such that ordering the employee to return to working on-site would amount to a “change imposed by the employer”? Possibly, but if the employer had been informing and warning its employees that working from home was a temporary arrangement, subject to revocation at any time in the employer’s discretion, it would be difficult for the employee to successfully argue that point.
If the employer had not been careful about emphasizing to employees that working was home was a temporary arrangement, subject to revocation at any time, the employee could assert that working from home had become the new status quo. In effect, working from home would have become a term or condition of his/her employment.
The employer imposing a change to that “new normal” – by compelling the employee to return to on-site employment - could well amount to “family status” discrimination (if it also “results in a serious interference with a substantial parental or other family duty or obligation of the employee”). This is the trap; if the employer allows itself to fall into this situation, it opens itself up to these complaints.
So, What Do We Do About This?
If your business still has employees working from home as a result of the pandemic, and you haven’t emphasized (in writing!) that working from home is a temporary arrangement and is subject to revocation at any time in your unfettered discretion, now is the time to do so. It may already be too late, but it cannot hurt to issue that notice. And, don’t get too comfortable with issuing the notice only one time; remind them (at least) every couple of months.
Even better, call them back to the workplace (sooner rather than later). The earlier you get them back to working on-site, the better. Even if you only call them into the workplace for a few days here and there, that’s better than leaving them at home, indefinitely.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.