Keep it legal: employment lawyer on how to implement flexible work arrangements in Canada

StatsCan data shows employees divided on where they want to work

Keep it legal: employment lawyer on how to implement flexible work arrangements in Canada

A new report released this week from Statistics Canada (StatsCan) revealed that although the number of employees working mostly from home is returning to pre-pandemic levels, employers are still facing challenges in meeting diverse employee preferences.

The report also showed that employees have different ideas of what ideal working conditions are in relation to how many hours they work at home compared to the office.

For HR professionals who may be wondering about the legalities around granting flexible work arrangements, changing scheduling policies, or related requests from current employees and new hires, HRD spoke with Saskatoon MLT Aikins partner Amy Gibson.

Gibson stressed that the most important step for employers to take when implementing work policies on an individual or organization-wide basis is to check the legality of what they are doing first.

“With flexible work arrangements, you want to have a look at the employment contract and any policies that you have in place, as well as your government’s legislation,” she said. “That will speak to the flexibility and the requirements for notice, or whether you can just go ahead and implement the changes that you're looking for.”

Flexible work arrangements: pandemic influences

The StatsCan report Research to Insights: Working from home in Canada outlined how the COVID-19 pandemic resulted in a sharp increase of Canadian employees working remotely, which caused a ripple effect of changes in the work landscape as a whole.

The data showed that after reaching a peak of 40% in April 2020, the percentage of Canadians working “most of their hours at home in a given week” fell to about 20% in November 2023. In May 2016, only 7.1% of Canadian workers worked mostly from home.

However, those mostly remote employees are divided on where they would like to see their schedules go.

A quarter of workers who worked mostly from home would like to work even more hours at home. One-in-eight said they would like to work less.

“One challenge for employers seeking to implement telework is to accommodate this diversity of preferences,” StatsCan concluded.

Avoid unilateral workplace changes without consultation

Where employers have made missteps, Gibson pointed out, is when they have made sweeping changes without communicating sufficiently with employees first or giving proper notice. In individual cases, changes to work schedules can be seen in the eyes of the law as grounds for constructive dismissal and potential wrongful dismissal claims.

“Sometimes in circumstances, if you're making unilateral changes in terms and conditions of employment … without the employee's consent or without enough flexibility already built into your employment relationship, you'd want to look at your employment contract and your policies on that,” she said.

“Those changes can be seen to be constructive dismissal, potentially of the employee or potentially it can put you into other obligations under employment standards legislation.”

Communicate flexible schedule policies during hiring process

Policies during the hiring process can be effective, Gibson said. If there is a possibility of work schedules changing in the future, she recommended that how those changes will be implemented is built into the employment contracts.

“Policies are helpful, as long as employees are provided notice of those policies,” she said. “They form part of the employment relationship, and unfortunately, sometimes that gets missed in the hiring process.”

StatsCan’s report stated that discrepancies between remote employees’ preferred mode of working, and how many hours they are actually given to work at home by their employers, could negatively impact retention.

“If you're looking at imposing substantial changes, or potential for substantial changes, you want to build in provisions on how that's going to be done,” Gibson said.

“If you foresee there's going to be changes, like potentially implementing a remote work option, you'll want to build in provisions in your employment contracts that allow you to make that flexibility, and what kind of notice or other obligations are triggered when you do that.”

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