Health and safety, accommodation should be on the radar as employees go back to the office
Many companies are emerging from the pandemic with hybrid workplaces. Canadian HR Reporter spoke with Lorenzo Lisi, partner and leader of the Workplace Law Group at Aird & Berlis in Toronto, about legal liabilities and considerations for hybrid workplaces.
Q: How should an employer respond if an employee wants to keep working from home?
A: “It's good to have a holistic approach for all of the issues that will come up in the hybrid workplace. The first thing is that we’ve been encouraging employers, from the very beginning of the pandemic, to create work-at-home policies that were very specific that it was for the period of the pandemic, to set out issues with respect to the security of documents, the workplace itself, what constitutes data security — all of those things were encompassed in the workplace policy because that gave parameters to what the employee can do now.
“If an employee says now, ‘I want to work from home for good,’ the question becomes, is that something the company is prepared to consider? If they say no, then we get into the question of: can the employee take the position that it was part of their new workplace in the sense that once the pandemic hit, that constituted their new job? I'm not as worried about that one.
“I think the bigger issue is if they have a request for accommodation that has arisen due to the pandemic — for example, childcare or eldercare — then I think those are requests that have to be considered and reviewed both procedurally and substantively, like any other accommodation request. If it's a matter of personal preference, I think the employer can say ‘No, we want you back in the office because that's where you were hired to work. The pandemic was a blip and now we're repatriating you back.’”
“If they were working from home [before the pandemic], I think that's a different situation because that was a term and condition of their employment rather than being forced on them by the pandemic. It’s a fundamental term that they're working at home, unless the policy or the terms and conditions say it's subject to change — in that case, I think you can call them back to work.”
Negative attitudes towards remote workers could disrupt the hybrid workplace, a survey has found.
Q: What health and safety measures should an employer consider for remote workers?
A: “The big precaution is to establish, either via policy or written agreement with the employee, that your workplace is now going to be your office at your house. From a workers’ compensation perspective, if you slip and fall taking the garbage out, that's not a workplace injury. We define the parameters of what the workplace is, so that if it happens outside that spot, then it's not a workplace injury.
“What we really encourage employees to do is define where they're working. If you're in your condo, we get that your condo may be small, but it's more specifically your office. If you go down to get a coffee at a Starbucks in the bottom of your building and you slip and fall, that's not your workplace. You're not in the course of your employment just because you happen to be at home. You try to define the space and the obligations on the employee in that space.
“If there is an injury in the employee’s workspace, you treat it like a workplace injury subject to all the same processes — the filing of the forms and a review of the injury. If it is normal wear and tear arising from the workplace, then you would treat it as a workplace incident.”
Q: What are the concerns for employees who don’t have designated workspaces?
A: “If somebody says, ‘I used to have a nice window office and now I don't,’ in the absence of any factors that change their employment relationship or discriminatory reasons, that's not enough to trigger a constructive dismissal.
Now, that's where we get into a discussion of vaccinations. What workspace can somebody who refuses to get vaccinated or is kept working remotely ask for? In the absence of any kind of religious or medical accommodation, there is no discrimination on the basis of vaccines. So you can say to somebody that if they're not vaccinated, then you have to put them in a certain spot. That's my personal view and I think that's probably supported by the law.
“Anecdotally, I think it's going to be really interesting for courts and tribunals. When you've got an employer who says, ‘We're in the middle of a pandemic, we know vaccines work, and you don't want to get vaccinated. I'm terminating you whether or not that constitutes cause because it is a workplace health and safety policy and employers are required to keep the workplace safe.’ My gut says that courts are going to say it still results in a termination, but I'll be interested to argue these cases because they're coming up.
“It is a health and safety issue for their employees, but when you're looking at the whole issue of repatriation, I'm not overly worried about an employee suing because they didn't get their desk, if there are no human rights issues.”
Leaders must balance differences between remote and in-person workers to maintain and boost engagement in the hybrid workplace, says a consultant.
Q: How can an employer avoid favouring in-person workers?
A: “Again, having a return-to-work policy giving notice to employees that they have the obligation to return to work, and then having a protocol with respect to how you treat people from both a health-and-safety and return-to-work perspective is your best defense. We told employers for a long time, ‘Don't tell them they're coming back next week, give them some time, let them figure out daycare or eldercare, or transportation, or whatever, give them a little bit of notice.’
“Unless it's on a human rights perspective, you might get favouring for people who came back early but it’s not much legally. It's bad for morale, but from a legal perspective, there's not much there.
“Communication from the top down is important, and that's where I think HR really becomes pivotal in this situation. HR is the link between management and employees. Whether it's vaccinations or working at home, it really has become the critical department in most companies right now because of the pandemic. HR departments should be considering implementing policies, but be reasonable dealing with employees. We're not in February 2019, we're in the pandemic, and there's going to be some communication, some hand-holding, and a little bit of a different approach.”
The hybrid workplace brings flexibility but also several employment law issues, says another employment lawyer.