Federal, Ontario workers will soon have right to request flexible work arrangements
Imagine being able to choose where and when you work for your employer or at least having the right to request changes to your work arrangements.
Beginning next year, most employees in Ontario covered by the Employment Standards Act, 2000 will have that right. Federally regulated workers will also be allowed to request flexible work arrangements once recently passed amendments to the Canada Labour Code (CLC) are implemented.
While many employers already give their employees flexibility by allowing them to work from home and/or choose their work hours, the legislative amendments will enshrine in law the right to request flexibility. This means that employers will have to consider employee requests and will be prohibited from punishing employees for asking for flexibility.
The federal changes stem from a promise that the Liberal Party of Canada made during the 2015 election campaign to help federally regulated workers better balance work and family.
The Ontario amendments were part of an overhaul of employment standards that the provincial government began implementing this year. The flex work provisions will take effect Jan. 1, 2019.
While Ontario is so far the only province to add flexible work arrangements to its employment standards legislation, the federal Liberals say they hope others will follow.
Specific procedures for making and reviewing flex work requests will need to be followed.
In Ontario, employees with at least three months of service with their employer will be allowed to request changes to their work schedule or work location. The request must be in writing.
The CLC will require that employees be employed by their employer for a minimum of six months before requesting changes to the number of hours they work, their work schedule, work location or to any other terms and conditions that may be included in CLC regulations. The request must be in writing.
In the request, federally regulated workers will have to include their name, the date on which they make the request, a description of the change, and the date they want it to take effect. If the change is only temporary, they will have to specify this and include the date the change will end.
Federally regulated employees will also have to explain how they think the requested change will affect their employer and how the employer could manage it.
In Ontario, employers will be required to discuss requests with employees and inform them of their decision “within a reasonable time” after an employee makes a request.
Employers in Ontario will be allowed to fully or partially grant requests or reject them. If they deny a request, employers must tell the employee why. If they accept all or part of a request, they must notify employees of when they will implement the change and how long it will apply.
The CLC rules are similar, but more specific. After an employee makes a request, employers will have up to 30 days to notify the employee in writing of their decision. Employers will be allowed to approve the request fully or partially, deny it or suggest an alternative. Employers who deny a request or offer an alternative will have to tell the employee why.
The CLC will only allow employers to deny a request under certain circumstances. They include requests that would result in additional costs that would be a burden for the employer and changes that would negatively affect the quality or quantity of work, the ability to meet customer demand, or any other aspect of performance in the workplace.
An employer could also refuse a request if it was not able to reorganize work among existing employees or hire extra staff to manage the change, or if the change would result in there not being enough work for the employee requesting it. Other reasons could be allowed under CLC regulations in the future.
When the federal amendments were still at the proposal stage, NDP MP Pierre-Luc Dusseault raised concerns during committee hearings that the rules could give employers too much latitude to deny requests.
“As I see it, the scope is so broad that the employer could, practically speaking, refuse to grant any request at any time, without having to provide any sort of evidence,” he said. “It would be very easy for the employer to claim that the requested change would have a detrimental impact on the quality or quantity of work in the establishment.”
Margaret Hill, senior director of strategic policy and legislative reform in the Department of Employment and Social Development, said that the requirements were in keeping with rules used in other countries that have legislated flexible work arrangements.
“The model that was used for the right to request is very much informed by practice in New Zealand and the United Kingdom, which introduced a right to request several years ago. These provisions mirror very closely those that are in the United Kingdom,” she said. “There is ample evidence that suggests they have been quite successful.”
She added that when the Canadian government held consultations on flexible work arrangements in 2016, business groups highlighted the importance of employers having the right to reject some flex work requests.
“We regularly heard concern from employers — small and medium-sized businesses, for instance — about what these criteria should be. There was an agreement amongst almost all stakeholders that there needed to be a formality around the process. There needed to be a way for employers to reject a request for flexible work arrangements,” said Hill.
It is likely that both employees and employers will need to adjust to the changes that a right to request flexible work arrangements may bring. Studies on flex work state that while it offers many benefits for workers and employers (in terms of happier, more productive employees), it also poses challenges.
These can range from communication issues that could arise when employees are not at the workplace as frequently to perceptions of co-workers who feel negatively affected by an employee’s move to a flex work schedule.
Other challenges include the need to change a culture that frowns on working in different ways in some workplaces and to rethink how employees do their work and how they are assessed.
A report on the federal consultations stated that scheduling issues might also be challenging for some employers.
“(T)here was a strong consensus that not all types of flex work are appropriate for every job. Stakeholders noted that flexible work arrangements may be especially challenging to implement in sectors with 24/7 or continuous operations, such as aviation, rail and trucking, and in small and medium-sized enterprises, where resources to accommodate flexibility are often very limited,” it said.
The report also highlighted possible financial challenges for both employees and employers.
“Advocacy groups noted that changes in work schedules, hours and location, including moving to part-time work, can have negative impacts on employees’ pay and/or benefits (e.g. health, pensions) and that this can result in employees not taking advantage of opportunities for more flexibility, even if they or their family would benefit,” it said.
While the new requirements not yet in place, payroll professionals in Ontario and those working for federally regulated employers should ensure that they are ready for any changes they may have to make.
These could include adjustments to policies and procedures to properly track employees’ daily or weekly hours. An employee’s net pay, source deductions, and benefit and/or pension plan contributions could also change, depending on the type of flex work arrangement.
Payroll professionals should ensure that their systems can quickly accommodate changes brought on by the new right to request rules, including keeping records of employee requests and employer responses.
They should also remind managers of the importance of notifying payroll well in advance if employees are making changes to their work schedule that will affect payroll data.
