Almost two-thirds of Canadian workers indicated they prefer hybrid or remote workplaces in an Accenture survey last year. A more recent Ipsos poll in May 2022 found one-in-three workers would change jobs if their employers mandated an exclusive return to the office. Organizations are fashioning work models that reflect flexible and remote preferences. Along with this culture shift comes new legal considerations and best practices for safe, equitable spaces.

Some employees may need additional support to succeed in a hybrid workplace, whether it’s because of protected grounds under human rights legislation or performance needs, says Maddie Axelrod, a labour and employment lawyer with Borden Ladner Gervais LLP. She was speaking in April during a webinar on the topic.

Companies may likely field various concerns around inclusivity. There could be animosity from workers who are required in the office versus their teleworking colleagues. Employees who’ve gone remote might also feel detached from the physical workplace.

“Equitable treatment on the team is important for obvious reasons like team morale,” says Axelrod. “We also know there’s a challenge with recruitment and retention right now. People may not want to return to work and join an office where they feel they’re not part of a cohesive team.”

She advises employers to listen and survey for input and develop policies and practices that account for various types of work—for instance, building a hybrid model into promotion decisions.

“If you have more traditional markers of success or commitment and you’re shifting into a hybrid workplace, give some thoughts as to whether you need to adjust those metrics to match,” says Axelrod. “Have you traditionally been rewarding people who spent most time in the office and are you no longer going to be doing that?”

Managing changes to terms of employment, overtime and employee attendance

In the context of flexibility, the request for alternative arrangements is growing.  If a change to terms of employment occurs as a result, companies should secure their workers’ written consent prior to reduced hours or wages, and changes in responsibility, says Melissa Eldridge, labour and employment lawyer with Borden Ladner Gervais.

She references Hagholm v. Coreio Inc., 2018 ONCA 633, in which the recall of an employee previously permitted to work from home three days a week amounted to constructive dismissal. The employer had changed the terms of employment without the worker’s consent.

A commute-free, remote office culture is also prodding more people to work extra hours at home due to choice or losing track of time. “In terms of a role, what they are paid and their contract, they may be entitled to more pay for that time,” says Axelrod. “When people are working remotely, it is important to develop policies to ensure everyone is clear about the parameters around working longer hours and overtime, and the obligation to track and record those hours.”

Employers are encouraged to set boundaries for when the work day begins and ends—whether that means logging in and out on a traditional 9-to-5 schedule or working within flexible hours.

Privacy and confidentiality in the home office

As of June 2, employers who employ 25 or more workers must now have a written policy in place on electronic monitoring. The new legislation is part of Bill 88, the Working for Workers Act, 2022, which became law in April.

Although the policy doesn’t give workers a right-to-disconnect, many employers are taking the opportunity to review expectations around disconnecting, which is harder to accomplish with remote arrangements, says Axelrod.

“Home offices are still in the home and work is being conducted there,” she adds. “There is a limited expectation of privacy even with a work computer.”

The policy must identify whether an employer electronically monitors employees and, if so, describe how and in what circumstances employees are electronically monitored and identify the purposes for which electronic monitoring may be used and how.

Even if companies don’t engage in e-monitoring, Eldridge suggests doing a “quick sweep” to determine whether contracts, collective agreements or policies touch upon this practice. Due to Bill 88, as well as new considerations with the hybrid workplace, she also advises updating an acceptable use policy, which establishes rules that a user must agree to for network access.

“If e-surveillance is happening, for example—to keep track of vehicles used in the workplace, mileage or locations visited on any given day, there is a justifiable use that could be a pre-existing arrangement that exists,” she says. “The rationale for monitoring is often a very important point and goes a long way in terms of your efforts to be transparent with your employees.”

On another level, the security of employers’ information that will be accessed remotely is also a key privacy consideration, whether work is being conducted on home or company networks.

Protecting health and wellbeing in remote workplaces

Under provincial labour laws, such as Ontario’s Occupational Health and Safety Act (OHSA), employers must take every precaution reasonable in the circumstances to protect the health and safety of workers. The OHSA has an exception for private establishments.

“It is not entirely clear if this will apply in the context of people working from home, but our best advice is to assume that it does and this obligation to protect your workers is still going to apply even when they are working remotely,” says Axelrod.

As she further explains, decisions from the Workplace Safety and Insurance Board (WSIB) show their coverage generally extends to employees “performing job duties in the course of employment”— on the road, in other remote places or in the office.

“Another best practice is creating a risk assessment checklist that offers employees a step-by step review of their working environment at home or in the office,” Eldridge recommends. “It promotes a culture of safety for each and every employee.”

She advises asking employees to “sign back” to show they’ve scanned for hazards—for instance, loose cables and back-friendly ergonomic equipment.

‘The duty to accommodate applies at home’

Hybrid or remote work models must also reflect the duty of employers to reasonably accommodate employees who fall into groups protected by human rights legislation to the point of undue hardship.

In what will likely be a “very case-by-case and fact-specific” situation, high-risk employees may continue requesting remote work or a tweaked hybrid model.

“If an employee has a legitimate substantiating document for human rights-related reasons and can’t fit into the hybrid work model the way you thought, then you need to go through an accommodation process,” says Axelrod. “There may be various other non-COVID reasons that people can’t fit into a hybrid workplace as planned. Flexibility and creativity are going to be key here.”

Companies may also need to provide special office equipment for these home-working employees.

Meeting accommodation needs isn’t a one-size-fits all solution. Potential outcomes could mean modifying or bundling job duties, alternative assignments, disability leave for strictly in-office roles, or full-time or part-time remote work. A flexible schedule for work-life balance is yet another option many companies are exploring—even if the statue doesn’t apply.

Close to half (45 per cent) of Canadians say the pandemic has negatively impacted their mental health, according to LifeWorks Inc.’s mental-health index in May.

“They are not the same employees who existed prior to the pandemic,” Eldridge observes. “We are seeing employees who can feel drained or bored because their life has been infiltrated.”

In other instances, workers may feel anxious to connect with colleagues or exhausted from video calls. The lawyers offer a spate of strategies for tackling declining mental health: combat digital exhaustion with acceptable in-person arrangements; invest in better benefit plans and allowances, such as food delivery; change traditional working hours for balance; focus on active engagement; and set clear expectations.

As more people ditched urban life for small towns and other provinces, bringing their home office along for the move, companies are encouraged to proactively clarify jurisdictional issues that come from teleworking across any border.

Employees may require working permits or visas. Companies may need to “carry on business” in that jurisdiction with corporate filings and paying taxes, as well as registering for workers compensation and reviewing applicable local employment laws.

Tips for hybrid and remote work policies

As a form of legal protection, a hybrid or remote work policy outlines when and how employees can work outside the office, and should include all leaders within an organization. This is a document that companies can convey as fluid—with potential future modifications,

The lawyers advise this policy reminds employees of work obligations, such as attendance, performance and confidentiality, and reiterates the code of conduct as workplace harassment can also transpire in remote set-ups.

On top of that, companies can clarify expectations for a safe workplace, procedures for hours of work and overtime, and equipment reimbursement, with room to vary the policy for human rights accommodation purposes

“Policies aren’t going to anticipate every single possible situation that is going to arise, especially as we venture into this new area of hybrid working,” says Axelrod. “But if you set out guidelines and general principles— that more-or-less expected conduct you have for your employees, it will put you in a good position to have a strong, effective, cohesive hybrid workplace.”