Employers should ensure temporary summer work arrangements don’t become permanent

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They should accommodate when the law requires it. But they should know the difference. 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Camps are expensive or unavailable. Vacations need to be juggled. So the employee who normally arrives at 8:30 a.m. and leaves at 5 p.m. starts working from the cottage, disappears for two hours in the afternoon and finishes the day early.This advertisement has not loaded yet, but your article continues below.The employer thinks: it is summer. Work is slower. We can accommodate this.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againA very expensive distinction.Employers need to understand two separate legal issues that are too often confused.First, family status does not provide an employee with a general right to dictate where or when they work.Second, employers can nevertheless turn a temporary arrangement into a contractual term through its own conduct.Under Ontario’s Human Rights Code, family status is a protected ground. An employer may need to accommodate genuine childcare obligations to the point of undue hardship. But having children does not, by itself, entitle an employee to work remotely, start late or structure working hours around preferred childcare arrangements.In Peternel v. Custom Granite & Marble Ltd., an employee returning from maternity leave claimed that requiring her to start at 8:30 a.m. discriminated against her because she could not arrange childcare before 10 a.m. The Ontario Superior Court rejected her human rights and constructive dismissal claims, and that was upheld on appeal.This advertisement has not loaded yet, but your article continues below.The lesson for employers is important: not every childcare difficulty creates a human rights obligation.But there is an equally important warning.An employer can be too accommodating for too long.In Hagholm v. Coreio Inc., the Ontario Court of Appeal upheld a finding that an employee’s ability to work from home had become a term of her employment after approximately 22 years of doing so. The employer could not simply withdraw the arrangement and require her to return to the office without legal consequences.A more recent warning came from British Columbia. In Cressey Construction Corporation v. Parolin, the B.C. Court of Appeal upheld a finding that a longstanding work-from-home arrangement had become an express oral term of employment.The employee had worked for the company for approximately 18 years, during which she had developed flexible hours to accommodate childcare and ultimately worked remotely with management’s approval. When the employer required her to return to the office full time, the change was found to constitute a constructive dismissal, resulting in 19 months’ severance.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.The point is not that every employee who works from home for a few months acquires a permanent legal right to do so. It is that employment terms can be created by conduct not just by what appears in the original employment agreement.That creates a particular trap when it comes to summer arrangements.An employer who tells an employee in June, “Work whatever hours you need to this summer and work from home when it makes sense,” may consider it a temporary courtesy. If the same arrangement continues into September, October and November, the employee may see something quite different. If it happens repeatedly over several years, the employer has made the argument stronger still.So what should employers do?First, decide what you are actually offering.If you are temporarily allowing an employee to work from the cottage because August is slow, make that clear.Second, put the arrangement in writing.It can be as simple as: “This temporary arrangement will apply from July 1 through Aug. 31. It does not change your regular hours, work location or other terms of employment, which resume on Sept. 1.”This advertisement has not loaded yet, but your article continues below.That will not defeat every contractual claim. Courts look at conduct as well as words. But employers should not leave their intentions to inference.Third, be careful what your managers say.Statements such as “Work from wherever you want” or “We don’t care when you work as long as the job gets done” may sound like sensible expressions of flexibility. They can also become useful evidence for an employee claiming that the employment relationship changed.Fourth, distinguish accommodation from preference.An employee whose child’s summer camp ends at 4 p.m. is not automatically entitled to work from home afterward. Where a genuine family status accommodation is required, the employer must participate in the accommodation process. But the employee also has obligations, including making reasonable efforts to find alternative childcare and participating in whatever reasonable solutions the employer comes up with.Family status does not turn an employer into a childcare provider.Finally, do not wait until September to decide what June’s arrangement meant.This advertisement has not loaded yet, but your article continues below.By then, an employee may have reorganized childcare and other aspects of life around the flexibility. If the arrangement has become contractual, withdrawing it can create a constructive dismissal claim.Employers should be generous when flexibility makes business sense. They should accommodate when the law requires it. But they should know the difference.The best time to establish whether a summer arrangement is temporary is before the summer begins.The law does not require employers to turn every temporary accommodation into a permanent concession, but employers that fail to define the limits of their generosity may ultimately find that the law has done it for them.Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practises employment law in all provinces and is the author of six books, including the Law of Dismissal in Canada. Lavan Narenthiran is a senior associate at Levitt LLP.We apologize, but this video has failed to load.This advertisement has not loaded yet.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.