Who decides who will work from home in Ontario?

Ontario employers can breathe a little easier today in assuring that essential staff show up to work.

During his announcement on Tuesday of the stay at home edict for all Ontario residents, Premier Ford was explicit: all employees who could work from home would have to stay there during the latest lockdown. The Ontario Government’s 33 page handout said that only limited exceptions would be permitted. But the unanswered question was: who would make the decision as to whether an employee could tenably perform their work remotely? The police? The employees themselves? The fear that employers evinced and the implications for the tenability of their businesses was palpable. Anecdotally, employers are receiving accounts of police cruisers stopping their employees and directing them to go home.

Fortunately, the stay at home regulation issued by the government last night under the Emergency Management and Civil Protection Act leaves that determination to the employer: an individual may leave their residence when their employer has determined that the nature of the individual’s work requires attendance at the workplace.

So the employer is given the authority to exercise their bona fide judgment to determine when the work must be performed in the workplace. This minimizes the arbitrariness that comes with giving law enforcement unfettered discretion.

Best practices is for employers to review the different positions and document the rationale for any decision to require the incumbents to attend at work.