Working from home
Since the COVID-19 crisis, the practice of working remotely has evolved into an essential facet of modern employment. The temporary mandate to work from home during the pandemic underscored a fundamental need, prompting many employees to continue remote work arrangements to varying extents. In an effort to enshrine the right to remote work more securely within legal frameworks, the proposed legislation known as the 'Work Where You Want To' bill was introduced. Despite receiving resounding support in the House of Representatives during the summer of 2022, the bill was recently rebuffed by the Senate. This development begs the question: What is the current status of the potential right to work remotely, given the legislative impasse?
The Flexible Working Act, a preexisting legal framework, furnishes employees with the avenue to petition their employers for adjustments to working hours, schedules, or workplace arrangements. Under this legislation, if a company employs a minimum of ten individuals, the petitioner must have completed at least six months of service and must submit their request in writing, no later than two months before the proposed implementation date, and not more than once annually. In such cases, the employer is obligated to provide a written response no later than one month prior to the commencement date. Failure to adhere to this stipulation mandates automatic approval of the employee's request. Furthermore, the employer is required to engage in consultations with the employee regarding their petition and must furnish written justification for any denial.
It is important to note that requests for workplace adjustments are treated distinctively from those pertaining to alterations in working hours or schedules. While requests for modifications in working hours are generally obliged to be granted, subject to compelling business interests, requests for workplace adjustments adhere to a less stringent standard.
Upon receipt of a request for a workplace adjustment, the employer must evaluate and discuss the matter with the employee in the event of rejection. While the 'Work Where You Want To' sought to align the treatment of workplace adjustment requests more closely with those pertaining to working hours or schedules, concerns raised by the Senate regarding its necessity and potential regulatory burdens on employers have resulted in the retention of the existing legal framework.
Case law offers a rare insight into the adjudication of workplace adjustment requests, emphasizing that decisions should not only be predicated on the employer's managerial prerogatives and duty of care but also on the principles of fair employment practices. Given the employer's obligation to provide reasoned justifications for denials, unfounded refusals should not be countenanced. However, within the bounds of good employment practices, employers may reasonably justify rejections succinctly.
In essence, notwithstanding the legislative stalemate, employees retain the prerogative to request remote work arrangements to varying degrees. While lacking a statutory threshold to safeguard against arbitrary denials, the tenets of fair employment practices arguably afford sufficient safeguards. Ultimately, the imperative for collaborative agreements between employers and employees remains paramount.
