Canadian Employment Law Today

August 11, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 IN A post-pandemic workplace, many employ- ees want the flexibility of a "hybrid" remote work arrangement that enables them to work from home for at least part of the work week. In fact, a KPMG in Canada survey found that over three quarters (77 per cent) of Canadians want to be able to work both in the office and remotely. A further 71 per cent believe the hy - brid office should be the standard model for all organizations. Nonetheless, an even high- er number of Canadians (81 per cent) worry about how their employer will handle this "re- boot" of the workplace. While the feelings among employers about hybrid remote work are mixed, it's also clear that there are numerous employment law issues to consider. Below we answer some pressing employment law questions. I don't want a hybrid workplace. Can I re - quire employees to return to the office? Gen- erally, yes. It's within an employer's discretion to mandate the location of work. However, this is subject to the terms of employment agree- ments, health and safety obligations and any applicable accommodation issues. Even if the entitlement to work remotely is not an express term of the employment agreement, it may be implied — particularly in context of prolonged remote working ar - rangements that continue, even as workplaces reopen. Other factors include an employer's pre-pandemic approach to remote work, whether a remote work policy was imple- mented, and whether the arrangement was communicated as being temporary. When is constructive dismissal a risk? Con- structive dismissal can occur when an em- ployer breaches an express or implied term of an employment contract. If remote work has become a term of employment, then requiring employees to return to the physical workplace may result in an employee's constructive dis - missal — and the employee may be able to pursue wrongful dismissal damages. Whether remote work is a term of employment may vary by employee but is certainly a risk to consider on a case-by-case basis. Additional steps — like working notice of the hybrid work policy — should be considered to mitigate this risk. Conversely, many employers implemented remote working arrangements on a tempo - rary basis, usually to meet their obligation to provide a safe and healthy workplace — with sometimes suboptimal results for the busi- ness. In most cases, a remote work arrange- ment was not considered by the employer and employee at the time of hiring, let alone agreed to. Remote working arrangements that were implemented as temporary safety mea - sures are less likely to constitute a term of em- ployment and lead to constructive dismissal arguments. Do health and safety concerns impact the ability to have employees return to a physi- cal workplace? Generally speaking, health and safety obligations can work both ways. On the one hand, workplace safety continues to improve as vaccinations increase, rapid testing becomes available, and employers continue to put into place other preventive measures like social distancing. This both makes it more likely for an employer to fulfill health and safety obligations while recalling employees to the office; and less likely that an employee can claim that health and safety regulations entitle them to work from home. On the other hand, there may be times when an employer's health and safety obliga - tions prevent them from mandating a return to the office (if only temporarily). For exam- ple, a local COVID-19 outbreak or new wave of infections occurs. Overall, an employer's accommodation ob- ligations under human rights legislation may preclude a mandated return to the workplace. For example, childcare obligations or health concerns may trigger human rights protection and the duty to accommodate by allowing an employee to continue to work from home. Can I permit some employees to work re - motely while requiring others to be in the workplace? There is nothing inherently wrong with this. However — even if unintentional — a hybrid remote work model can create dis- tinctions between employees that create hu- man rights or broader diversity and inclusion concerns. Beyond direct acts of discrimination — for example, a remote work policy that un- reasonably prevents a protected group from either working at home or returning to the office — the hybrid model can result in indi- rect discrimination. Indirect discrimination can occur when a hybrid remote work policy does not expressly or intentionally preclude a group that is protected under human rights legislation, but this group is nonetheless ex - cluded by operation of the policy. For example, perhaps a policy only allows an employee to work remotely if they can at- tend the office within 45 minutes of being called in. This may not seem like a problem. However, it may disproportionately impact certain groups. What if only certain demo - graphic groups are able to live within the city core and can't be at the office within that timeframe? If the excluded group is pro- tected under human rights legislation — for example, on the basis of age or ethnicity — human rights issues may arise. Even if human rights obligations are not triggered, such poli - cies can have a detrimental effect on diversity and inclusion in the workplace in general. As such, employers should be prepared to make adjustments or accommodations as needed. Can I compensate employees differently, depending on whether they work in the office or at home? Compensation practices are generally within the employer's discre - tion. Whether an employer wants to alter compensation based on an employee's loca- tion of work is generally a business decision but is not without risk — particularly where an employee's total compensation is signifi- cantly reduced. Such a reduction can lead to constructive dismissal, unless employees are given proper notice of the reduction or con- sent to it. That said, changes in compensation can also be used to mitigate the constructive dismissal risk that can result from the hybrid remote work model. Key items to consider The decision to implement a hybrid model in- volves both legal and business considerations. There is no single, one-size-fits-all solution. To determine whether or how a hybrid model may be implemented in your workplace, con- sider the following: • Do employment agreements or workplace policies allow for changes to remote work- ing arrangements? • Do specific employees have accommoda- tion issues that need to be addressed? • How must a hybrid model be implement- ed to create consistency and avoid potential unintended consequences or indirect discrimination? • Should compensation or other benefits be amended? Lisa Cabel is the National Leader, employment and labour law, for KPMG Law LLP, providing management-side employment, labour, and hu- man rights legal advice. For more information, visit Legal considerations and liabilities for employers with employees working both at home and in the office BY LISA CABEL The hybrid workplace is here to stay

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