Tesla CEO Elon Musk recently caused a stir when he reportedly told employees to report to their assigned offices for at least 40 hours per week, saying in an internal memo “if you don’t show up, we will assume you have resigned”.
Last year prolonged lockdowns and the incursion of Delta meant that many employees (particularly those in office-based roles) spent large amounts of time exclusively working from home. However, in 2022, as the less severe strain of Omicron has spread throughout the community, many businesses are either moving to hybrid model of operating, where employees can work a mixture of from home and in the office or are requesting that all employees return to the office or physical workplace.
While most will appreciate that Musk’s approach lacked tact, his comments do raise an interesting question of whether employers can demand that their employees return to the office or physical workplace.
Workers with COVID-19
It is important to remember that anybody testing positive for COVID-19 must still, under public health regulations, self-isolate for 7 days after their symptoms first occurred or after they received their positive test result, whichever ends sooner. Household contacts of a positive case are still required under public health regulations to isolate until the confirmed case in their household has completed their 7 days of isolation.
Regardless of an employer’s stance on requiring employees to physically come back into the office, they cannot require employees who are currently COVID-19 positive or household contacts to return to work. The only exceptions are if the household contacts are able to work as a “Bubble of One” or the business is part of the “Close Contact Exemption Scheme”.
Employees reluctant to return to work
Employees might be reluctant to return to the office/physical workplace for several reasons:
- They are genuinely worried about contracting COVID-19;
- They are unvaccinated and/or are concerned about whether the workplace is safe enough for them to return;
- They live with a vulnerable or elderly person who may come to more harm from COVID-19;
- They have become accustomed to working remotely and simply don’t wish to return to the office.
Most employment agreements specify the employee’s place of work as a term of employment and many will specify the employer’s office or premises as the place of work, although some may also refer to working from home or hybrid working arrangements.
Any employee refusing to return to the office is likely breaching their employment agreement by failing to attend work at the stipulated place of work. Any variation to a core term of employment (such as the place of work) must be mutually agreed between the employer and employee. Employees are not entitled to unilaterally vary their terms of employment.
Requiring employees to physically return to work is, in our view, likely to be interpreted as a lawful and reasonable instruction. Employers are allowed to give their employees lawful and reasonable instructions and employees are duty bound to follow them, providing they are within the scope of their contractual obligations/responsibilities and the instruction does not require them to perform any act contrary to law or perform any dangerous task. Employers can rightfully argue that, for the vast majority of roles, attendance on site is required for (1) the employee to perform their role (2) so the employee can interact with colleagues and/or clients in person and (3) so the company can foster a team culture that may be harder to sustain via online communications.
If an employee refuses to follow such an instruction, then the employer can justifiably take disciplinary action, including issuing a warning for insubordination. In the case of persistent insubordination, termination of employment may be justified, but that will need to be assessed on a case-by-case basis.
Employers don’t need to implement a policy specifying return to work requirements (although they may choose to). It is sufficient to send a communication to staff informing them of the requirement and when it takes effect from (this then becomes a lawful and reasonable instruction).
Employers should consider the following factors before deciding to implement such a requirement:
- Whether a “hybrid” model of working might be suitable for the business (for example, allowing employees to work two days at home, three days in the office each week);
- Whether the employer’s culture/camaraderie amongst staff might suffer if employees are permitted to work remotely;
- Whether allowing remote working will assist with staff retention given many employees expect flexibility;
- Whether the needs of the employer’s clients/customers can adequately be met by employees working remotely;
- Whether they have existing protections in place to mitigate the risk of employees contracting COVID-19 i.e., hand sanitiser, requirement to wear face masks in certain situations, ensuring a degree of social distancing; and
- In the case of unvaccinated employees, whether the business is allowed to have them on-site (remembering that some Government vaccine mandates remain in force).
Employers should take a nuanced approach when dealing with an employee who has reservations about returning to the office:
- Listen to the employee’s concerns. If they have safety concerns, assess the sincerity of those concerns (remembering that there will be a small number of employees who will use COVID as an excuse to work exclusively from home);
- If concerns about the safety of the workplace are expressed, consider whether those are justified and how they might ensure the workplace is safe for staff to return;
- Engage with employees in good faith and explain both the reasons for requiring staff to return and their view on the employee’s concerns;
If the employee’s concerns are genuine, consider whether a compromise might be reached, for example allowing the employee to work under a hybrid arrangement or giving them a slightly longer date by which they must return to the office; and
- If a compromise is not desirable or possible, remind the employee that the direction to return to work is a lawful and reasonable instruction and that disciplinary action will likely follow if they do not comply with the instruction.
Under part 6AA of the Employment Relations Act, employees do have the right to request a permanent or temporary change to their place of work by making a request for flexible working arrangements”. Employers are not obliged to agree, but if the employee does submit a formal request for flexible working arrangements, the employer must genuinely consider it in good faith and advise the employee of their decision.
Employers will no doubt make their own judgement calls about whether they introduce a mandatory “office only” requirement. Many companies have taken a progressive approach and believe hybrid working arrangements better assist with staff productivity and retention in what is a tight labour market. Employers who do want their staff to return to the office full-time will take comfort in knowing they are on solid legal grounds to require it, providing they communicate the decision to staff with more tact than Mr Musk did.
Please feel free to contact our employment team if you require further advice.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.