Canadian Employment Law Today

Canadian HR Reporter, 2021 these mental health realities. As a result, in- vesting in workplace health and wellness has become key to ensuring operational success and mitigating against legal risk. Mental health considerations require em - ployers to balance competing obligations under health and safety legislation and hu- man rights legislation. Although there is a spectrum when it comes to health and safety obligations across the country, generally, em- ployers are required to take every precaution reasonable in the circumstances to protect the health and safety of their workers, includ- ing 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 employ - ers can respond to accommodation needs by maintaining remote working arrangements on an indefinite basis. Vaccination policies. Since COVID-19 vac- cines became available, employers have ques- tioned 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 em- ployers turning their minds to relevant con- siderations and there may be circumstances in which a policy requiring vaccination may be appropriate — such as in circumstances where employees are interacting with vulner- able populations — any policy at this time is very likely premature due to the small num- ber 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 accommoda - tion from employees who may be unable or unwilling to get vaccinated for reasons rela- tion 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 work- place policies and equipped people-leaders through training and development. How- ever, given the extraordinary conditions that the pandemic has created, employers need to be introspective, innovative, inclusive and in- tentional in order to make the best strategic decisions that stabilize for the future. To properly identify the opportunities pre- sented by the key trends for 2021 and avoid obstacles and potential liabilities, employers should take the opportunity to be introspec- tive about the impact of the past year. The necessary course corrections that many work- places made were reactions to complex and unforeseen circumstances. However, in the longer term, employers must act intention- ally 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 inno - vation, both externally and internally. Being innovative-minded involves examining oppor- tunities that have opened up due to changing environments. For example, new or increased remote work presents an opportunity to con- sider 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 poli - cies adequately set expectations about how the arrangement will work, including how and why it may be terminated. Employers also should take the oppor- tunity 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 opportuni- ty 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 ini - tiatives. Having employees contribute ideas and input to new organizational strategies increases buy-in and mitigates risks to em- ployee engagement, morale and productivity. Finally, employers must be proactive in formulating their strategies. In many areas of labour and employment law — includ- ing 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, poli - cies and training to make sure that they hit the mark in terms of workplace needs and goals. Additionally, employers must be inten- tional in rolling their policies out. No matter how well crafted a policy is, employers need to ensure that it is communicated to all em- ployees clearly so that expectations are prop- erly set and the policy can be relied on. Employers should also intentionally ex- amine 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 en - force 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 discrimi - nation escalations — is imperative to avoid- ing liability. No employer can have all the answers, particularly given that the HR law land- scape 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 pro - actively 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 proac - tive 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. February 24, 2021 | Canadian Employment Law Today CREDIT: OLIVIER LE MOAL iSTOCK Vaccination policies raise the risk of human rights challenges and increased requests for accommodation. ABOUT THE AUTHORS 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 lwilliams@williamshrlaw.com. Aleksandra Pressey is a lawyer at Williams HR Law, where she practises in all areas of management-side labour, employment and human rights law. She can be reached at (905) 205-0496 or apressey@williamshrlaw.com.

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