HRM dives into the legal and moral considerations around forcing employees to return to the physical workplace.

Earlier this month, the NSW government lifted its public health order requiring employees to work from home. The move was surprising considering the state was struggling with a second wave of COVID-19 at the time, but it’s in line with other states that have been slowly adjusting their regulations over the last couple of months. 

Currently, the Fair Work Ombudsman suggests employers “continue exploring alternative working arrangements in their workplace, particularly while social distancing rules apply.” However, states have begun relaxing their restrictions around workplaces. For example, organisations in Victoria and Queensland can open but with caps on the number of employees that can return.

Many Australian workplaces are starting to resemble pre-COVID days,but, just because some employers can mandate returning to the workplace, there are still plenty of important considerations to keep in mind before doing so. 

Employees have continually indicated they prefer remote work. But as some organisations continue to struggle balancing hybrid workplaces, it’s understandable that they might prefer everyone was back in one place.

Making a hasty decision around return-to-work procedures could put employers and employees at odds with each other, so before instructing employees to return to the workplace, let’s look at the legal and moral implications.

Is it a reasonable direction?

“An employer can give an employee any lawful and reasonable direction. Is it reasonable for the employer to direct an employee to return to the workplace? In the vast majority of cases it probably is,” says Michael Byrnes, employment lawyer partner at Swaab. 

Byrnes points out that many standard employment contracts stipulate where the employee must work from. In most cases that will be an office, workshop or factory etc. and therefore, if the employer has done its due diligence to ensure the workplace is safe to return to, it could be deemed reasonable to direct an employee to return to the workplace.

It’s unreasonable to direct employees back to a workplace that doesn’t follow COVID-safety guidelines, says Byrnes. 

Organisations are required to follow federal and state restrictions when considering return to work. These regulations include social distancing guidelines, limits on gatherings and cleaning and hygiene requirements. Safework Australia has compiled a list of federal guidelines and links to state directions on its website.   

However, even in the safest work environments, employers should consider employees’ individual circumstances. 

“What is a reasonable direction for one employee might not be a reasonable direction for another,” says Byrnes.

“Employees who might be in vulnerable groups – for instance, older employees or employees who have medical conditions – will have a greater argument against a direction to return to work.”

In such instances, employers can request medical evidence to demonstrate why that employee cannot return to the workplace. 

Byrnes says employers should also consider the risk traveling to and from work can pose. While it’s not on employers to manage such risks, it is still a possible barrier to those returning to workplaces, particularly those belonging to an at risk group, such as people who are immunocompromised. 

Finally, it’s worth considering how rapidly circumstances around the virus can change. Employers should ensure they stay up to date with any enforceable government directions.

“Flexible work practices are important for all demographics – engagement rather than force is key to enabling these practices for specific business needs.” – Rosemary Guyatt FCPHR, Australian HR Institute.

The moral dilemma

If you’ve determined your workplace is safe and the direction is reasonable, should you now force employees to come back?

Rosemary Guyatt FCPHR, general manager of people and culture at the Australian HR Institute (AHRI) says “no”.

“Don’t forget that a considerable amount of employee goodwill was relied on to make the rapid shift to work from home,” says Guyatt. You don’t want to undo all that hard-earned trust by forcing people to do something they’re not comfortable or happy with – especially when you consider that many employees have likely only just got into the work-from-home rhythm.

Guyatt believes that goodwill isn’t likely to work in the opposite direction now that most employees have wholeheartedly embraced remote work. 

If employers force their employees back, they might see reduced employee engagement and a possible increase in attrition rates – we know even prior to the pandemic that work/life balance and flexibility was the most important thing to Aussie workers.

“Many employers will embrace flexible work and this will be a differentiator for employees. Those employees who are seeking greater flexibility may choose to leave,” says Guyatt.

Guyatt says funneling employees back into the workplace isn’t a simple task. Organisations need to consider logistical issues, such as the availability of parking as employees avoid public transport. There are also issues associated with interstate and overseas travel. 

“Teams should be encouraged to figure out their new ways of working in line with the needs of the business and its customers. In the early days of transition, there should definitely be flexibility as employers and employees figure out the new ways of working,” says Guyatt.

“Flexible work practices are important for all demographics – engagement rather than force is key to enabling these practices for specific business needs.”

Can you fire an employee who refuses to come back?

There are a litany of reasons why an organisation might demand its employees return to the workplace, so it’s worth considering what happens if an employee refuses that request.

Byrnes says employers need to first find out why the employee is objecting.

“If there’s a medical health reason, that needs to be explored. It may well be that further medical evidence needs to be procured by the employee, or the employer might suggest an independent medical examination,” says Byrnes.

It’s important workplaces explore this aspect first, as the employee could claim unfair dismissal if their employment is terminated as a result of refusing to return to the workplace.

If the objection isn’t medically motivated then the employer can warn the employee that they risk termination for refusing to follow a direction, says Byrnes. If this doesn’t persuade the employee then employers might have little choice but to follow through on the termination, if working from home isn’t an appropriate alternative.

Either way, Byrnes says it will come back to whether the direction was reasonable. 

“If the issue ends up in front of the [Fair Work] Commission, that’s what they’re going to consider,” he says.

If you have questions like “can employers force employees back to the workplace?” AHRI:Assist could give you the answer. Backed by experts, the team can help you with all kinds of employment and workplaces issues.