Can an Employee Refuse to Work Remotely During Covid-19?

An employee is likely able to refuse work if they qualify for the Covid-19 related Leave of Absence under the Employment Standards Act (“ESA”).  Likewise, an employee is likely entitled to refuse to work in a workplace that is not determined to be an essential workplace by the Government of Ontario.  An employee appears to be within their rights in refusing to come to work in a non-essential workplace because they are complying with a public health related order in doing so.  However, what happens if the employer is prepared to accommodate remote work for the employee so that he or she can do the job from home? Can the employee still refuse to work?

The steps that are required to accommodate remote work would include:

  • equipping the employee at home with the items that are required to do the job (ie. a computer, scanner, printer, paper, camera, microphone, conferencing phone, etc.);
  • providing adequate, training, instruction and direction as to the expectations and procedures for remote work; and,
  • consider providing compensation for a ‘home office’ set up (akin to the entitlement for a tax deduction for home office costs).

Additionally, an employer may wish to consider enhanced salary or wage structures in order to incentivize the remote work.

Does a remote workplace qualify as an “essential workplace”? Lets look at a sales job for example. Most sales related jobs are not on directly on the list as essential workplaces during the Covid-19 Emergency. However, the Essential Workplace list developed by the Government of Ontario includes a provision for remote sales. Sales in certain categories ‘through an alternative method of sale such as curb side pick-up or delivery’ are deemed essential at item no. 15.  There are other provisions in the list providing for ‘alternative’ sales and service delivery and employees who are concerned should seek advice in determining how the list applies to their business.

Once an employer has determined that alternative delivery methods apply to the business and the employer has accommodated those alternatives for remote work, the employer will want its employees carry out the work.  An employee however may feel they are better off not working and taking CERB or EI benefits instead. Can the employee still refuse the work?

Arguably at that point, the employee cannot refuse the work without jeopardizing their entitlement to the CERB or EI benefits and jeopardizing an entitlement to termination pay under the ESA.   If an employer has accommodated remote work and alternative delivery, the employer has effectively created an essential workplace for the job.  So long as there is no other impediment to the employee working, such as qualification for the ESA Covid-19 leave , then an employee likely cannot refuse the work without putting both their job and their benefits at risk. If the employee refuses the work they are arguably abandoning their position and may be deemed to have quit. Abandoning and quitting may disentitle  and employee to government CERB and EI benefits and could eliminate any claim against the employer for rehire rights, and termination pay such as pay-in-lieu of notice and severance.

Employers should seek advice as to the essential workplace qualifications of their business, accommodating remote workplaces, the CERB and CEWS benefits and ESA leaves.  Conversely Employees should seek advice with respect to refusal of work, CERB and EI benefits and ESA leaves.

< Back To Blog