6 key legal questions around hybrid workplaces

Are new employment contracts required? How should overtime be handled?

6 key legal questions around hybrid workplaces

As many workplaces contemplate an entirely new way of working via the hybrid model — where employees work from home, from the office and any combination in between — what should employers be aware of in terms of policy decisions?

Canadian HR Reporter spoke with Kate McNeill-Keller, partner at McCarthy Tétrault in Toronto, to clarify some of the basic questions.

Q: What are the main legal considerations when setting up the hybrid workplace?

A: “From a legal perspective… what are the new arrangements? How often do people have to come in? And how often do they stay at home? What are the rules associated with these arrangements? You can certainly put these things into place with relatively low legal risk, especially where they are in demand with employees embracing or asking for or agreeable to these kinds of altered arrangements.

“Normally when we talk about major unilateral changes to people’s terms and conditions of employment, we think about constructive dismissal and other things like that. These arrangements have been, for the most part, very well received and in fact usually sought after by employees and so that risk is relatively low. But that said, you want to be thoughtful as an employer in setting out what the rules and the parameters are and being clear in your communication of those so that down the road, people understand what the expectations of them as employees are.

“One of the biggest risk factors associated with hybrid workplaces, especially if people are permitted to work remotely all the time, is where are they working from? Are they working from their home, which is usually in the province in which they were originally employed or are they permitted to work elsewhere? Because when you start to talk about remote work arrangements where employees are permitted to leave their home province, there are implications to that potentially including different tax implications payroll tax and income tax implications, employment standards, compliance implications, immigration implications.”

Q: Should employers rewrite existing policies to reflect the new reality?

A: “Employers need to look back at their existing slate of workplace policies and figure out whether they need to be adjusted: acceptable use of technology policies, overtime policies, vacation and time-off policies, expense reimbursement policies… Workplace harassment policies may need to refresh because if they’re not actually in the office, do your policies clearly account for the extension of the workplace to home or to other virtual environments?

Q: Are new employment contracts required?

A: “If this is a permanent change, then that might favour an amendment to an employment agreement to make it clear what the new rules are and what the expectations are for both sides to have clarity. If it’s temporary or still not determined, then amending an employment agreement multiple times over maybe doesn’t necessarily make sense.

“But in each case, you have to look at the employment arrangement and what the changes are and then determine whether this is a policy change or whether this is a change to a contractual arrangement, in which case that might favour an amendment to a contract.”

Q: What should employers be thinking about for health and safety?

A: “There are two regimes that they have to consider. One is workplace safety, the WSIB [Workplace Safety and Insurance Board] regime in Ontario for example, and there are comparable regimes elsewhere and they typically have policies around work-from-home arrangements and making sure that your workers’ compensation program, if you have one or if the employer has one, contemplates remote work on an ongoing or permanent basis.

Kate McNeill-Keller

“From an occupational health and safety perspective, the home becomes the workplace or at least part of the home does and the employer does need to ensure that employees understand that they need to have a safe work environment that’s safe from normal workplace hazards, safe from an ergonomics perspective but also delineating between injuries that occur at home, versus injuries that occur or illnesses that occur in the context of work and drawing a distinction between those. Because if you cut your hand making dinner, that’s not a workplace injury, even though your workplace is your home.”

Canadian HR Reporter has also spoken with experts about what employers should be thinking about when it comes to vaccine passports for the workplace and privacy concerns around mandatory vaccination policies.

Q: How should workplace harassment be handled?

A: “The key consideration is to ensure that your policy contemplates a virtual work environment. The definition of work of a workplace is very broad for workplace harassment purposes and it includes online, cyber, virtual, things that happen by email, by messaging platforms, by social media and other technology mechanisms.

“[Employers] need to make it clear to them that their use of company technology, whether it’s computers or phones — whether it’s their servers or their systems, whether it’s their online platforms, like Teams or messaging platforms or Skype or whatever it might be — that that falls within the scope of the workplace and their conduct on those is subject to review; it’s subject to monitoring the same way email historically has been and that they don’t have a reasonable expectation of privacy in respect of their use of company resources. 

“Employers need to be mindful about how they use technology to enhance the collaborative nature of those meetings to make sure that those working from home are fully engaged in the meeting, and have the opportunity to participate because… workplace ostracization, where someone gets excluded, it can in some circumstances fall into the context of workplace bullying, which is covered by occupational health and safety legislation.”

Q: What are some considerations when it comes to performance and attendance management?

A: “Ensuring that people are getting fair access to performance management to mentorship to opportunities, and coaching and feedback, that all has to be done a little bit differently in the virtual environment.

“From an attendance management and hours-of-work perspective, one of the biggest risks is with the blurring of home and work and the fact that people are working at different hours. Part of the hybrid environment is it does allow people flexibility for childcare and otherwise, but some employers may say, ‘No, your workday is still 8:30 to 4:30’ or nine to five or whatever it is, and making sure that they understand how they’re going to monitor for that.

“Where people are working odd hours where they’re signing in and out at different points during the day or working in the evenings, it may be ensuring that they’re not tripping over overtime thresholds, through those blurring of lines or exceeding maximum hours of work rules under the employment standards legislation and making sure that they’re managing for those groups is really important because those can lead to employment standards compliance concerns, they can lead to overtime claims and otherwise, so employers need to have clear policies around hours of work, which may need to be adjusted.”

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