Flexing workplace flexibility muscles in working from home arrangements

Thanks to COVID-19 measures, employees are embracing WFH, employers not so much

Flexing workplace flexibility muscles in working from home arrangements
Arooj Shah, James Kondopulos, Stuart Rudner

As Canadians slowly emerge from the COVID-19 cocoon we’ve been living in over the past 18 months, one thing has become clear — for most of those who have been working from home through the pandemic, the prospect of going back to the workplace full time is something to which they are not looking forward.

And for some, going back five days a week is something that just isn’t going to happen, as far as they are concerned. If they can’t convince their current employer to be more flexible about working remotely, they’d rather quit and look for an employer who is.

An Angus Reid Institute survey released in August makes it clear where most employees stand. In answering the question, “Suppose your employer demands that you return to the office full time, what would you do?” The answers: 19 per cent would likely quit and look for another job right away; 25 per cent would go back to the office, but may start looking for a new job; 39 per cent would “roll with it” and return full-time and 17 per cent were not sure.

On the flip-side, many employers are leaning in the opposite direction. A survey of senior managers in Canada done by HR consultancy, Robert Half, indicates 56 per cent will require their teams to be on-site full time once COVID-19 restrictions lift. About 30 per cent would follow a hybrid schedule with time divided between the office and home, and 13 per cent suggest they would allow workers to work remotely full time.

Given the apparent employer-employee divide in feelings towards a return to the office, labour and employment lawyers say they have been fielding daily calls from employers and employees about their legal rights and how to move forward.

Toronto-based Stuart Rudner works with both employees and employers. He says management views fall into two camps: “those who want things to go back to the way they were as quickly as possible and those who realize that a lot of work can be done remotely just as efficiently at a reduced cost.” And, of course, some recognize that a hybrid model — offering some flexibility — might be the compromise needed.

Of course, there are legal considerations — what employers expect of employees and what employers must provide — and business considerations. And lawyers who work with employers suggest that their clients must consider both to develop a workable solution.

The starting point, says Vancouver-based James Kondopulos of Roper Greyell LLP, is that “employers have the right for their employees to be in the office performing their jobs as they did pre-pandemic.” In the panic of the first days of the pandemic, most employers told workers that working from home was a temporary measure, he says.

Of course, there might be employees who already had signed contracts that allow them to work remotely. And there are employers who, after sending workers to work from their homes in March 2020, decided to give up their office space and move to a full-time virtual or remote platform. But any employer who asked workers to stay home temporarily was messaging that they were “preserving the right to require employees to come back to work, as was the pre-pandemic status quo.”

Walter Pavlic, a labour and employmentlawyer with MLT Aikins LLP, based in Edmonton, notes employers legally “get to call the shots” on where employees work. “There is a reason why employment law was once called the law of ‘master and servant,’” he says. For practical reasons, it makes sense to look at the situation to find solutions that appease employers and employees.

Questions one should ask include whether employees can work productively from home, Pavlic says, siting an example of someone working in a call centre who is in a cubicle dealing with customers, and who may only interact with colleagues during their breaks. There may be a good argument to keep remote work with today’s technology to monitor whether the worker is working (maybe even down to the keystrokes and minutes for each call). There might even be advantages in cutting costs through measures like reducing office footprint.

On the other hand, Pavlic says many workplaces rely on a culture of people talking to others and collaborating. While it’s physically possible to collaborate through Zoom or Teams calls, most employers who feel strongly about collaboration and office culture would argue those calls are just not the same as in-person meetings.

“You have to think, is taking a hard line on returning to the office going to affect morale? Is it going to affect productivity? What about really strong employees who have childcare issues — are you going to risk losing them to another organization that is more flexible? If you’re going to insist on a 100 per cent return to the office, you’re not going to get a 100 per cent positive response.”

He notes one client who has an employee who says she won’t come into the office, and that there is a “tug of war” over whether she will return.

Pavlic’s colleague, Arooj Shah, says the last 18 months of many employees remotely working 100 per cent has shown that, generally, productivity has gone up. Even the number of hours worked has increased, thanks to employees having their computers at home, fewer distractions and the blurring of work life and home life. Despite this, employees have generally embraced working from home — it helps with childcare responsibilities, there’s less time commuting, and overall flexibility — and they want this new model of work to be permanent, even if only in some hybrid form.

One issue that has emerged out of the pandemic regarding people working from home is that some employees have taken what has generally been considered temporary measures and extrapolated it into not having to come to the office as something permanent.

In its most drastic version, lawyers point to employees who have decided to move a long distance away, even to other cities or provinces, without even telling their employer. “Some people just made the assumption that they can work remotely forever. So, they’ve sold their house, and they moved hundreds of kilometres away to somewhere where housing is cheaper.”

Rudner points to two of his files where this happened, with the employer saying, “you can live anywhere you want, but you have to work out of the office.”

In one case, Rudner says the employee had a good relationship with management, and they were willing to work out a deal where the employee could move and perhaps come into the office now and then, but for the most part, work remotely. In the other situation, Rudner says there wasn’t as much goodwill, and the employer was very upset that the employee had not said anything before the move. The employer insisted the employee come to the office Monday to Friday, or the employer would deem him to have abandoned his job.

“Similar situations, two completely different results. I think we’re going to see a lot more of this in the near future.”

Suppose employers decide to provide employees with more flexibility to work from home permanently. In that case, Kate Ross of Barteaux Labour and Employment Lawyers in Halifax says employers must consider several things. Among them are: how to keep sensitive documents confidential, who has access to the work or home computer used for the work, and “trade secret” work situations that might have otherwise happened in a secure place at the office.

Other significant considerations are occupational health and safety issues. Says Ross: “Is the ergonomic set up at home done correctly? Will there be chronic pain issues if not? If there is an injury at home, when would it be considered a work injury, and when would it not?”

Ross notes a Nova Scotia case, pre-pandemic, where a work-from-home employee had to respond to an emergency in the middle of the night. Rather than use the downstairs bathroom, the employee went to one upstairs to not disturb others in the house. She fell on the stairs and injured herself, so the question was whether this was a work injury. The judge, in that case, decided that it was.

“There will be a lot of similar cases to that, and the employer can’t really control the environment.”

For employers who want workers back in the office, Ross suggests giving reasonable notice of when the employer expects them back. Some employees may need to make childcare arrangements, pet care arrangements, even find a parking space because they gave their old one at the pandemic’s beginning. “These things are not protected legally, but they make sense.”

Human rights laws protect employees who claim protection because of disabilities, medical reasons, family status and other categories as legal accommodation. Employers are obliged to take that information and accommodate the employee to the point of “undue hardship.”

Another argument in favor of not going back to the workplace is that it is an “unsafe” work environment. Traditionally, that had meant something along the lines of the absence of a guard on a piece of machinery, or the guard not working correctly, says Rudner. But that argument can only go so far, especially if employers have taken every reasonable precaution to keep a safe environment — cleaning protocols, screening tools, and social distancing of workspaces are just some examples.

However, Ross points out that the Nova Scotia Human Rights Act is unusual in Canada since it includes “irrational fear of contracting an illness or disease” as a protected characteristic.

Still, most Canadian employees saying they are “not comfortable” coming back to the office would likely have difficulty insisting they have a legal right to continue working remotely if called back. Kondopulos says that employers need to weigh workplace precautions against “unsubstantiated” anxiety.

As well, the employer would take details about the employee’s personal life into consideration. Says Kondopulos: “Has that employee been insulated at home with near-zero in-person social interaction, or is that employee going outside regularly but doesn’t want to come to work?”

In the end, labour and employment lawyers say that employees and employers will have to feel their way around a post-pandemic world that will likely want to embrace greater workplace flexibility.

Says Rudner: “A lot of people will have realized that they want to have more flexibility and be at home, take some time during the day to handle personal matters, look after the kids, and they’re willing to work off-hours to make up for it. It’s not as though they want to work less. They want to work differently.” Employers, for their reasons, are pushing back.

However, Kondopulos, like other lawyers, says it’s important to distinguish what is “legal” for an employee or employer and what is practical. “Employers may have to extend arrangements being requested by employees, because otherwise those employees will move elsewhere and secure those arrangements elsewhere.”

He adds that employees are incredibly mobile these days, and “it’s very much an employee’s market in terms of who gets to dictate the terms and conditions of employment, and employers are very hard-pressed to find good, reliable personnel.”

Pavlic and Shah at MLT Aikins in Edmonton agree that amicably working out flexible work arrangements might be the best way to resolve issues. However, they expect much of this discussion will end up for courts or tribunals to decide. “It’s certainly been a very interesting time to be in employment law, as new issues coming up constantly with respect to remote work in particular,” says Pavlic.

Adds Shah: “If employers can offer a hybrid work policy that gives employees the flexibility to manage their lives and prioritize what’s important to them, that could be a solution. It also addresses employers’ concerns about workplace culture and collegiality and having employees in the office to build sort of the kind of environment that employers desire.”

A cool reception on going back to the office

Source: Angus Reid Institute

Source: Robert Half Talent Solutions

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