Canadian Employment Law Today

Canadian HR Reporter, 2021 4 Navigating the next normal THE LAST few years have brought signifi- cant change to the HR law landscape. Shifts in employment standards, occupational health and safety (and, in particular, harass- ment), 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 workplac - es will continue to contend with in 2021 include: responding to employee expecta- tions related to equity, diversity and inclu- sion ("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 re- lated 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 discrimina - tion, 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 eradi - cate systemic barriers to equitable and inclu- sive 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 strate - gic 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 harass - ment. Increasingly, the complaints are about subtle, and often historical, transgressions, including microaggressions and microinvali- dations. Because of the increased complexity, organizations are encountering situations where managers may be unsure of how to address a complaint, and often, organiza- tions' policies do not identify these subtle behaviours as unacceptable conduct or pro- vide any guidance on how to triage such es- calations. This can leave employees feeling unsafe or unsupported to bring these con- cerns 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 bul - lying — 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 harass - ment have been increasing. Sexual harass- ment 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 perpe - trated race-based discriminatory misconduct. Meeting investigation obligations. With complaints on the rise, employers have to be ready to handle situations that require inves- tigations, which have become a regular event in workplaces. In many Canadian jurisdic- tions, investigations into some types of mis- conduct (such as harassment) are statutorily required. In other circumstances, an investi- gation 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 ap - propriate to investigate internally. For exam- ple, complaints involving microaggressions or microinvalidations require an investigator who is trained to investigate with an equity and/or anti-oppression and/or trauma-in- formed approach, which may impact a par- ty'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 organiza - tions 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 expecta- tions on how employees should work virtu- ally. 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. Ad- ditionally, many employers have not directly addressed what role remote work will play in their future business model and are increas- ingly 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 pre - carity, 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 con - tending with how to manage the effects of CASE IN POINT: EMPLOYMENT LAW The year 2020 was one of upheaval and employment law wasn't immune to that. HR lawyers Laura Williams and Aleksandra Pressey take a look at what it all means for employers as they deal with the aftermath of this upheaval in 2021. BACKGROUND BY LAURA WILLIAMS AND ALEKSANDRA PRESSEY Key HR law trends for 2021 and how employers can address them Employers could benefit from involving employees in discussion about workplace mental health and wellness initiatives.

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