Employment lawyer Lorenzo Lisi provides valuable tips for employers
As business start to repatriate employees back to the office, there may be bumps in the road. “Do employees have to comply?” is the big question on Canadian employers’ minds as we head further into 2022.
To avoid possible legal issues, employers need to have their policies in order, according to Lorenzo Lisi, partner at Aird & Berlis, who will be speaking at the upcoming Employment Law Masterclass.
“Employers need to start with their work-at-home policies, both for new and long-term employees,” he says.
“These policies should include not only the terms and conditions of their remote work but the expectations for a return to the office. What I’ve seen thus far is that most employers, through the course of the pandemic, have developed fairly robust work-at-home policies to address the necessity of working at home during the pandemic. Now, however, as there is a push to recall back to the office, those policies may be tested.
“For example, if during the pandemic an employer hired a new candidate under the condition they work remotely, but there is nothing in the agreement (or clearly defined and acknowledged policies) that stipulates that the work-at-home arrangement is subject to a return to the office at the employer’s discretion, the employee may take the position that working at the employer’s physical location is a fundamental change to the terms and conditions of their employment, and therefore a possible constructive dismissal.
“The lesson here is that if an employer is hiring where hybrid work is a component of that job, it needs to be very clear what the terms are with respect repatriation,” says Lisi.
While there’s been a myriad of changes to the workplace since pre-pandemic days, including considerable workplace related legislation (such as, in Ontario, the Working for Workers Act which addresses electronic monitoring and the right to disconnect), the current challenge for HR leaders will be returning employees back to a physical workplace without disruption.
When it comes to new employees, HR leaders should ensure that there is language in the employment agreement and workplace policies stipulating that remote work is not a permanent term and condition of employment, but that the employer reserves the right to bring them back to the office.
“The workplace will have to adjust,” say Lisi. “Hybrid work is quickly emerging as a talent attraction and retention issue. If an employer is calling employees back to the office, they need to realize that employees have adjusted their lives to a work-at-home environment. Most employers are providing significant notice of a gradual return to work, rather than an edict that they must return ‘immediately’. Being sensitive to this possible dislocation not only makes sense from a talent retention perspective, but also may avoid refusals and legal claims.”
Health and safety and remote work
A lot has been written about the need to ensure the health and safety of employees during the pandemic, particularly during those periods where workplaces could not have employees physically at work. From a health and safety perspective, working at home extends this obligation to the employee who is working from home.
“Remember that where an employee is working from home, their home is their ‘workplace’,” says Lisi. “Employers have a duty of care to ensure that there are proper policies in place to address health and safety for remote workers. This should be part of your remote working policy, which should in turn what part of the home is the ‘office’. For example, if the employee injures themselves taking out the garbage, is this a ‘workplace injury’ or unrelated to the job? The policy should address this.”
It's also important to look at the mechanisms in place to deal with any issues concerning health and safety on a day-to-day basis, he says.
“When employees work at home remotely, there is a risk that these are overlooked. Issues from ergonomics to mental health all impact the day-to-day life of an employee working at home. Employers need to recognize that these are as important as if they were physically working at the employer’s premises.”
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