Navigating the next normal

The last few years have brought significant change to the HR law landscape. Shifts in employment standards, occupational health and safety (and, in particular, harassment), workers’ compensation, termination entitlements and investigation obligations, to name a few, have left many employers and employees reeling. The employers that will successfully keep their footing in 2021 are those that consider the key HR law trends and formulate proactive strategies to ensure that they maximize potential benefits while minimizing areas of liability.

The trends

The top HR law trends Canadian workplaces will continue to contend with in 2021 include: responding to employee expectations related to equity, diversity and inclusion (“EDI”); navigating the complexity of workplace harassment complaints; meeting investigation obligations; accommodating employee mental health; managing remote work; and considering vaccination policies.

Responding to employee expectations related to EDI. Amid the COVID-19 pandemic, the murder of George Floyd in the United States in May 2020 in conjunction with other ongoing and high-profile cases motivated a worldwide wave of protests against racism and inequality. Employees are holding employers accountable to elevated standards of fairness and equity and, where employees feel these standards have not been met, employers have seen a sharp rise in allegations of discrimination, and specifically anti-Black racism.

In response to the circumstances, many organizations announced their support for anti-racism movements and efforts. Just as quickly, some organizations were lambasted by members of the public, including their own employees in certain cases, for their perceived hypocrisy due to past EDI-related transgressions. Taking a stand with respect to EDI and implementing measures to eradicate systemic barriers to equitable and inclusive treatment can have significant benefits for an organization in terms of employer brand, ability to attract talent and workplace morale. However, a misstep in this area can lead to significant backlash, which can lead to the employer losing credibility with strategic industry partners, clients and employees, as well as reputational fallout resulting from being tried in the court of public opinion.

Navigating the complexity of workplace harassment complaints. Spawned by social movement activity, since spring of 2020, there has been an extreme spike in race- and ethnicity-based complaints with respect to discrimination and discriminatory harassment. Increasingly, the complaints are about subtle, and often historical, transgressions, including microaggressions and microinvalidations. Because of the increased complexity, organizations are encountering situations where managers may be unsure of how to address a complaint, and often, organizations’ policies do not identify these subtle behaviours as unacceptable conduct or provide any guidance on how to triage such escalations. This can leave employees feeling unsafe or unsupported to bring these concerns forward as they are often rebuffed as lacking legitimacy, even where there are best intentions to address employee concerns.

Further, general stress and tension from pandemic-related concerns is contributing to an increase in certain kinds of conduct-related issues in the workplace such as bullying — some of which is perpetrated subtly by virtual interactions that managers may not be equipped to address.

Employers also have to keep in mind that the costs of mishandling workplace harassment have been increasing. Sexual harassment cases, in particular, are resulting in high awards compared to a few years ago, as this type of misconduct is taken more seriously by adjudicators. Given the current spotlight on sexual harassment, it can also be anticipated that race-based misconduct may also attract more severe consequences where employers are found to have either condoned or perpetrated race-based discriminatory misconduct.

Meeting investigation obligations. With complaints on the rise, employers have to be ready to handle situations that require investigations, which have become a regular event in workplaces. In many Canadian jurisdictions, investigations into some types of misconduct (such as harassment) are statutorily required. In other circumstances, an investigation may not be statutorily required, but it still must be completed for the employer to demonstrate it has appropriately addressed the situation and not condoned misconduct.

Related to the EDI and harassment trends set out above, employers are now finding that seemingly innocuous incidents may be quite complex and, therefore, may not be appropriate to investigate internally. For example, complaints involving microaggressions or microinvalidations require an investigator who is trained to investigate with an equity and/or anti-oppression and/or trauma-informed approach, which may impact a party’s interpretation of events and presentation of evidence. There may also be allegations of poisoned work environments or systemic racism that require specific expertise that is not in-house or, given how extensive these inquiries can be, the organization may not have the resources or capacity to conduct.

Managing remote work. Many organizations had to pivot to remote work in 2020 with little to no time to strategically plan and without any policies or practices in place to provide guidance and set expectations on how employees should work virtually. Over the last several months, there has been significant debate about the efficacy of employees working from home, including with respect to productivity and privacy. Additionally, many employers have not directly addressed what role remote work will play in their future business model and are increasingly learning of employees moving far from the office or requesting to work from abroad, on the assumption that they will be able to do so for the foreseeable future.

Accommodating employee mental health needs. One of the most significant outputs of the pandemic has been the mental health crisis. Employees are experiencing anxieties related to job security and economic precarity, fears related to health and workplace safety and stress from radical changes to how work is performed. This has led, in many cases, to the exacerbation of pre-existing mental health conditions and substance use disorders. Organizations are now contending with how to manage the effects of these mental health realities. As a result, investing in workplace health and wellness has become key to ensuring operational success and mitigating against legal risk.

Mental health considerations require employers to balance competing obligations under health and safety legislation and human rights legislation. Although there is a spectrum when it comes to health and safety obligations across the country, generally, employers are required to take every precaution reasonable in the circumstances to protect the health and safety of their workers, including mental health, up to the point of undue hardship. At the same time, employers must navigate the tricky terrain of accommodating mental health. An emerging accommodation trend involves employees who may be fearful of returning to work asserting that employers can respond to accommodation needs by maintaining remote working arrangements on an indefinite basis.

Vaccination policies. Since COVID-19 vaccines became available, employers have questioned whether they can or should require employees to get vaccinated. The law with respect to this potential requirement is not currently settled. While there is value in employers turning their minds to relevant considerations and there may be circumstances in which a policy requiring vaccination may be appropriate — such as in circumstances where employees are interacting with vulnerable populations — any policy at this time is very likely premature due to the small number of vaccines that have been administered to date. Additionally, in many cases, there are good reasons why employers should hold off, not the least of which are human rights risks and increased requests for accommodation from employees who may be unable or unwilling to get vaccinated for reasons relation to protected grounds.

Getting ahead of the trends

Typically, the best way to proactively “get ahead” of trends that impact the workplace is to assess how well the organization has communicated expectations through workplace policies and equipped people-leaders through training and development. However, given the extraordinary conditions that the pandemic has created, employers need to be introspective, innovative, inclusive and intentional in order to make the best strategic decisions that stabilize for the future.

To properly identify the opportunities presented by the key trends for 2021 and avoid obstacles and potential liabilities, employers should take the opportunity to be introspective about the impact of the past year. The necessary course corrections that many workplaces made were reactions to complex and unforeseen circumstances. However, in the longer term, employers must act intentionally to strategically and sustainably stabilize against the pandemic’s ongoing impacts and chart the course for the future. In this regard, employers would be well advised to revisit their vision, mission and values to ensure they still reflect the organization’s objectives, as these will underlie most, if not all, policy and procedure decisions.

Organizations should also embrace innovation, both externally and internally. Being innovative-minded involves examining opportunities that have opened up due to changing environments. For example, new or increased remote work presents an opportunity to consider new options related to recruiting talent as employers that typically hire locally may find that they can now expand their search to access more talent than ever before. Employers that wish to benefit from this opportunity should consider all possible dimensions, including legal implications of employees working from abroad (tax, health and safety, employment standards, etc.) and make sure that their policies adequately set expectations about how the arrangement will work, including how and why it may be terminated.

Employers also should take the opportunity to be truly inclusive in some of the decisions critical to stabilize operations in this environment. Inclusive employers are those that give all employees an opportunity to contribute and participate fully in the organization, seeking input and ideas from employees at all levels within the workplace. For example, employers could benefit from involving employees in discussion about workplace mental health and wellness initiatives. Having employees contribute ideas and input to new organizational strategies increases buy-in and mitigates risks to employee engagement, morale and productivity.

Finally, employers must be proactive in formulating their strategies. In many areas of labour and employment law — including with respect to all of the trends identified above — one-size-fits-all solutions do not work, and each circumstance must be dealt with on a case-by-case basis. Employers are well advised to consider their own workplace realities when implementing strategies, policies and training to make sure that they hit the mark in terms of workplace needs and goals. Additionally, employers must be intentional in rolling their policies out. No matter how well crafted a policy is, employers need to ensure that it is communicated to all employees clearly so that expectations are properly set and the policy can be relied on.

Employers should also intentionally examine whether leaders have the training and competencies required to navigate the “current” normal. An employer’s front-line mangers are the ambassadors of the policies and procedures. They will need to be able to answer questions about the content and enforce expectations. Ensuring that leaders have received all legally required training and are skilled to triage the trending HR law issues — such as meeting safety requirements and accommodation obligations, identifying complaints that need to be investigated and dealing with accommodation and discrimination escalations — is imperative to avoiding liability.

No employer can have all the answers, particularly given that the HR law landscape will continue to shift in 2021 — and beyond — as the trends addressed above take shape. Where employers most often face significant challenges is when they find themselves having to respond reactively to challenges for which they have not planned. While these efforts can be successful, the potential for liability is much greater than in situations where the employer has proactively and strategically considered how to respond to and prepare for anticipated challenges.

In this regard, employers would be well advised to contemplate these key trends, and how the anticipated impacts may apply to their particular workplaces. Taking a proactive approach to any coming challenges will help employers maximize their chances of success as their businesses navigate our next “normal” and the accompanying shifts in HR law.

Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or [email protected].

Aleksandra Pressey is a lawyer at Williams HR Law, where she practices in all areas of management-side labour, employment and human rights law. She can be reached at (905) 205-0496 or [email protected].