Many of the world's office environments have been working from home since March 2020. As Ontario’s “third wave” starts to lose steam and vaccination rates increase, Ontario employers are starting to consider what the post covid workplace looks like. Although offices are not likely to reopen fully for months yet, employers need to start looking at what “normal” looks like as we come out the other side of covid.
First, it is important that no decisions should be made with any finality– this is a planning and assessment stage. Second, there are a lot of important steps which employers should be taking as soon as possible to initiate this assessment process.
Continue reading below or watch our webinar replay with Momentum Business Law’s Founder, CEO and Lawyer, Megan Cornell.
Preserving Employer Discretion
A key consideration is what precedents are going to be set in the coming months and years. It is important for employers to know that while we have been in a period of extraordinary circumstances since March 2020, the workplace adaptations most likely did not become new fundamental terms of employment. However, as we emerge from covid, continuing changes like discretionary remote work options could very well become fundamental terms of employment and become difficult to change.
Great care needs to be taken in this assessment stage to clarify to staff that permanent changes are not yet happening. This should be done with clear written communication and employee engagement at all stages.
Location of Work
One of the two main hot topics right now is of course where employees will work in the coming months and years. Most reports from workplace surveys have the majority of employees preferring working from home 3-4 days per week, maintaining some ties to the office but more than half of the time working from home. For the most part, employees are currently responding that they want to come to the office occasionally, for certain meetings with colleagues and for social engagement. Of course, it isn’t yet clear if these preferences will last as the world returns to a more normal pace in the coming years.
These current preferences present a lot of challenges for employers. As noted above, it is most important for employers to make it clear that no preference or changes at this stage form permanent fundamental changes to the employment contract. Unless agreed otherwise, the employer retains the discretion at all times to choose work location and make working from the office a requirement either on a permanent basis or on a certain schedule. From a legal perspective, employers have always had unfettered discretion regarding location of work, short of location of work being a term of the employment agreement or a requirement to accommodate a particular health matter as advised by a medical professional.
It is clear that there will be many organizational changes required as workplaces adapt to accommodating employee preferences and evaluating how that impacts workplace culture and productivity. We strongly recommend that employers implement written workplace transition policies which clearly set out organizational goals and considerations and emphasize that there will be an assessment period to determine the best workplace configuration going forward. We recommend that a committee is set up that includes management and staff from all aspects of the organization to provide regular feedback during the assessment period.
Some considerations for remote-first or hybrid work:
Will employees be expected to be available to come to the in-person office at any time for meetings, or will there be set days and times for which availability is expected?
What will be the expectations be around availability for virtual work, on an ongoing basis?
If geographical proximity to a particular office is not a requirement of employment, whose responsibility will it be for an employee to attend occasional workplace meetings or events? Will team members be expected to pay for their own travel to the office for meetings?
Will a remote environment change expectations around hours of work and availability? Most workplaces have accommodated family considerations during the pandemic: understanding that some employees have had extra family responsibilities because childcare and schools were closed. However, once those factors are removed, will there be a return to a more rigid set of expectations around work?
What work will be prioritized for in-office work? If employees favour occasional office attendance primarily for social functions, what will that do to office configuration (i.e. need for offices vs. meeting rooms). Will the social function happen during regular office hours?
Geographic wage differences will need to be reexamined. If in-office work and proximity to an office is no longer a job requirement, can geographical wage disparities be maintained? Is a business willing to pay more to a team member because of where they choose to live, if living in that location is no longer a job requirement?
Compensation plans which include commissions or bonus plans may need to be changed for a hybrid workplace. For example, do the terms of discretionary bonus inadvertently favour those who are working in the office.
Management will have to be acutely aware of team dynamics if some people are regularly in the office and others are not. How does this impact career development and how team members progress through the organization?
Management training will need to be a priority. Many team managers have struggled through the last year as much as their reports have – trying to learn new management skills for a remote environment. If a remote or hybrid workplace is to continue post-pandemic, new management skills will need to be developed and nurtured.
Vaccines
The second hottest topic right now is vaccines and whether an employer can have a mandatory vaccine policy. At this point, our advice is that this is likely a short-term issue and that at this point, companies should wait to institute longer term policies based on public health input and potentially even government regulation.
In the short term, throughout the pandemic employers have had to balance two key obligations: occupational health and safety to provide a safe workplace and potential accommodation of health concerns. Prior to vaccines being available, the focus of this balancing act was mask wearing in the workplace. Public health requirements for mask wearing, barring medical exception, made this balance relatively easy for employers in most cases.
In an office environment which has remained open during the pandemic or which is moving to quickly reopen as vaccines are available, we anticipate a period of time during which workplaces may wish to only reopen to those who have been vaccinated. This may raise serious questions for employers if an employee is vaccine hesitant but wants to return to the workplace. Great care should be taken in approaching these situations. A written policy is extremely important here and it should focus on following public health advice and guidance.
It’s Time to Update or Create New Employment Agreements:
Now is the perfect time to update your employment agreements to accommodate any new terms or revised terms (such as location of work) and ensure that new policies are referenced, and compensation plans are updated if necessary.
This is particularly important in Ontario because of new case law in 2020 which had the impact of invalidating the vast majority of termination clauses in Ontario employment contracts, leaving employers exposed to vastly increased notice payments. You can read more about that decision HERE.
It is extremely important, if key terms of the employment agreement are being changed, to ensure that the update is done is a way which provides enough notice or consideration, so that a constructive dismissal is not triggered. For example, if an employer wants to roll back geographic wage disparities, a new policy on that should be implemented with significant notice.
Many employers are electing to include “temporary layoff” provisions in their contracts where they were not included before. Even if your workplace did not need to resort to a temporary layoff during the pandemic, employers saw the potential for large scale events outside of the business’ control to dictate sometimes extreme precautions like temporary layoffs. Having the provision in your employment contract allows for options if these sorts of extraordinary events happen.
Joint Health and Safety Committee:
Although this often comes as a surprise in many office environments, any workplace with more than five employees is required to have a joint health and safety committee. If you are one of those office environments which does not have a Joint Health and Safety Committee now is the perfect time to focus on setting one up. This committee will provide a structure for employee input on the key health and safety questions for the office including addressing questions around Covid-19. The Ontario Government requirements for the Health and Safety Committee can be found HERE.
New HR Policies
Employers need to look at revamping all of their policies and creating new ones where there is a void. The Joint Health and Safety Committee will contribute on the health and safety policies around vaccines, mask wearing, attendance at the office when sick and more, but policies need to be looked at beyond just those factors.
Workplaces should also review their sick leave policies and consider instituting a paid time off policy which will differentiate between illness and other reasons for leave. If you are planning to implement a hybrid workplace in the future, as many offices will, then a clear policy around working from home due to employee illness versus working from home in the regular course should be considered. Parameters around whether a sick day is needed when a team member works from home already can impose a level of scrutiny which likely neither the employer nor staff want to have. A paid time off policy removes the need for employees to state a reason to book time off and can be the bridge to addressing these issues.
Office Leasing:
This upcoming “evaluation” or transition period should also include an assessment of what physical space is needed once the new format for work is settled. Factors such as when office leases are coming up for renewal and what type of work the space will be regularly used for are key to consider. Consider whether physical changes will need to be made to the space to accommodate new work patterns: for example, collaboration space replacing single offices.
Commercial landlords with significant office space exposure are not yet ready to cut significant deals, however they are wary and willing to negotiate. There could be an advantage to renegotiating a lease which has a few years left, including negotiation of a significant leasehold improvement allowance for future use if physical changes need to be made to the space. This could allow the time for a workplace assessment to happen while preserving funds for changes to configuration. However, if lease terms are coming up in the near future, a short-term renewal might be a better option if a significant downsize (or upsize) in space is anticipated.
Workplace Safety at Home:
If working from home is to be an ongoing part of your workplace culture, thought will have to be put into home workspaces as a more permanent component. The overall cost of maintaining offices may need to start factoring in the cost of home office support, particularly if there is a “remote first” commitment. Employer obligations to provide a safe workplace in a home environment will clearly be different from in the employer-supplied office space, but we can expect the dialogue (and, undoubtedly, legal claims to follow) to develop around these questions. Consideration of the home workplace environment and safety should be a consideration of the Joint Health and Safety Committee to ensure that employee input is included.
In summary – now is the time to get started on the significant planning necessary for the “return to normal” that we are all looking forward to. Normal will almost certainly mean something different from what it meant in March, 2020, however that can be a good thing. Workplaces which are responsive to employee preferences but also take care to accommodate those preferences in a way which best support team dynamics and success are the workplaces which will succeed in the coming years.
Interested in learning where your company is at? Schedule a workplace return consultation call with our knowledgeable team.