Can your employer force you back to the office? We unpack your employment rights

Can your employer force you back to the office? We unpack your employment rights

Published on 2nd February, 2021 at 11:16 am

Can a company force you to return to your workplace? What about if you have an underlying health condition, have sickly parents or have children to care for? As some return to the office, we unpack your right to work from home.

What are acceptable reasons for wanting to work from home?

“If your health and safety are compromised, this is an acceptable reason for wanting to work from home,” says Candace Bachmann, associate attorney at Justine Del Monte & Associates. “The Department of Labour issued a consolidated COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces on 4 June 2020 setting out who would be deemed to be a vulnerable employee,” explains Bachmann. “According to the directive, employees with known or disclosed health issues or comorbidities or any other condition that may place them at a higher risk of complications, or employees above the age of 60 should, where possible, continue working from home. The directive places an onus on employers to ensure that the workplace is COVID-19-ready and complies with all occupational health and safety directives before calling employees back to work.”

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Can I be forced to return to the workplace?

“In general, no employee has a legal right to work from home unless it’s stipulated in their contract of employment,” says labour lawyer Neels van Rooyen. “Employers have the right to stipulate where employees will work, and most want to see and supervise their employees at the workplace.”

“If you are deemed a vulnerable employee, the directive provides that you may refuse to perform any work if circumstances arise which appear to pose an imminent risk of your exposure to COVID-19,” says Bachmann. “You can then motivate to continue to work from home by providing a medical certificate or report from your medical practitioner. If you are not in a vulnerable state and your office is complying with all health and safety regulations, then your employer can expect you to return to work. However, if you have shown that you can do your job just as well at home during lockdown, it might be difficult for them to force you back,” says van Rooyen. According to the Harvard Business Review, working without an office has extended people’s working time by an average of 10-20%, while also reducing work-related stress and negative emotions.

How do I know if my workplace is safe to return to?

“You, as the employee, may call on the employer to confirm that the workplace is COVID-19 ready and compliant before returning to work,” explains Bachmann. “Part thereof would be for the employer to provide you with a list of administrative measures and documents that they have implemented,” says Bachmann.

Should you find upon returning to work that the workplace is not COVID-19 ready and safe, you should inform the health and safety committee or the compliance officer to address the situation and appropriately rectify it where necessary, especially if you are deemed a vulnerable employee.” Van Rooyen adds, “If employers refuse to implement protocols, or to enforce them, or refuse and/or fail to accommodate employees with co-morbidities, the internal recourse would be to submit a grievance. The external recourse would be to lodge a complaint with the Department of Employment and Labour (DEL), specifically regarding workplace safety.”

How do I go about asking my employer if I can work from home?

“In order to justify working from home (or the continuation thereof), trust and accountability will be key, demonstrated through the following elements: good communication, meeting deadlines, delivering quality in terms of work and exhibiting a continuous work ethic,” explains Elise McCabe, a career transition coach and managing director of Career Management Consulting. “When discussing working from home with your manager or boss, make sure you know their preferred communication style to help you communicate better and ensure that you clearly state why you wish to continue working remotely. Do not assume they know if you have never discussed this before. Be direct but be flexible and solutions orientated. Remember, you want this to work for the both of you. Finally, if the above does not derive resolution, this may require approaching your human resources practitioner for guidance and support.”

Why would my employer not want me to work from home?

“The most common reasons are difficulty monitoring performance, trust and accountability concerns and information security risk. Home distractions are also one of the top concerns for employers,” says McCabe. “It also increases the level of difficulty for employee development and onboarding new employees,” McCabe continues. “We need to keep in mind that managers and bosses are also adjusting to working remotely, so it is possible that this additionally has been a challenging and stressful time for them, where they are used to seeing their employees in person, perhaps often throughout the day, where they may have had a better handle on exactly what they are doing with their time.”

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