Going long

This post was originally published in collaboration with Maciej Lipinski, who has since moved on from his role at KPMG in Canada.

In recent years, workplaces have changed drastically and have become increasingly reliant on remote work. Since the destabilizing events of 2020, some employers have permanently adopted remote work, some have resumed in-person operations, and many others are continuing to develop and adapt a hybrid approach. When it comes to hybrid work, change and periodic updates have also been the norm as many employers regularly need to pivot to meet the changing needs and expectations of their employees, service users and/or customers.

Regardless of whether an organization is in the early stages of a transition to hybrid work or changing an existing approach, several legal issues and risks need to be addressed. Effectively managing this process requires that management work alongside their legal and human resources teams to take stock of key considerations.

Below, we review our top 10 considerations for employers making moves to adopt or adapt a hybrid work model.

1. Have your employees agreed to the current state of the workplace?
The pace of recent change has been rapid. Employers that have made significant changes to their workplace since 2020 are therefore well-advised to review the extent to which these changes have been established on firm legal footing. These considerations include enforceable workplace policies, changes to the terms of employment and providing employees with appropriate written notice. Doing so sooner rather than later can ensure that any looming legal risks can be effectively addressed and mitigated before they grow into potentially significant liabilities.

2. Do you have buy-in from all levels?
Lines of communication are the lifeblood of an effective organization. When communications fail and a lack of buy-in results, effective change is unlikely to result. For example, an employee who feels they have been ignored by management’s communication style may be more likely to resort to legal action than to approach management when future issues arise. Navigating effective workplace communications and building buy-in calls for leveraging a balance of legal understanding, human resources tools and a sensitivity to workplace psychology—recognizing that shortcomings in any one of these areas can lead to issues in the other areas.

3. Are employees likely to agree to future changes?
At many workplaces, change has become the new normal. But employers don’t have an unfettered ability to change workplace conditions, and an employer making unilateral changes that significantly impact their employees’ fundamental terms of employment faces the legal risk that such changes may result in a “constructive dismissal.” Effective mitigation of such risk calls for engaging the workforce in advance of making changes—not only to better understand resistance points among employees but also to provide advance notice so that employees can prepare for future changes.

4. Are your onboarding and team-building programs meeting expectations?
Intangibles such as collaborative work culture create valuable avenues for prompt resolution of workplace issues. Remote working experiences during the pandemic affirmed the importance of shared spaces and physical offices for facilitating teamwork, loyalty and shared visions and missions. When intangibles like these are lacking, the risk increases that workplace issues will grow into legal ones. Recognizing the added value conferred by working in shared physical spaces, employers adopting hybrid models are well-advised to review and consider how best to leverage in-office time to facilitate team-building, to create inclusive work cultures and to effectively on-board new hires.

5. Are employees motivated to attend the physical office?
Changing behaviours requires the right incentives. As many employees became accustomed to working remotely nearly 100 per cent of the time during the pandemic, employers expecting a return to some degree of in-office work will need to consider how their employees should be motivated. Approaches may include both “carrots” (e.g., in-person events and commuting allowances for employees who attend the office) and “sticks” (i.e., disciplinary measures). Any such approach will likely carry some risk from both a legal perspective and a human resources one, making it crucial to plan your organization’s approach in advance—and in line with broader organizational missions and strategies.

6. Have employees raised concerns over fairness?
Different employees place different value on remote versus in-office working. To some employees, the benefits of working from home and saving on a costly commute may be highly valued, while others may find significant value in going to the office and having access to the resources available there. Challenges may arise when some employees get their preferred balance of in-office and remote work while others don’t. At the same time, allowing employees to individually select different proportions of in-office and remote work time may disrupt workflow and result in perceptions of unfairness among colleagues who view those not attending in-person as not doing their “fair share.” Transparent and equitable processes for determining in-office time and measuring work capacity can serve as important tools for addressing such fairness concerns and for ensuring that those concerns don’t grow into significant challenges or result in legal disputes. Engaging a professional advisory team can help your organization plan its strategy and prepare appropriate policies and processes as part of your hybrid work model.

7. Has your hybrid workplace inadvertently created more work hours?
The boundaries between working and not working may become increasingly blurred in a hybrid workplace. Difficulties in tracking exactly how many hours employees are working can lead to a potential liability for the widespread accumulation of unpaid work hours and even unpaid overtime entitlements. An important starting point for any employer is to establish (and regularly review) policies and employment terms that prescribe when employees are considered “on the clock” and when they aren’t.

One area where the tracking of work hours in a hybrid work model can become particularly challenging is employee commuting. While commuting to a traditional workplace would not be considered working time, the situation is less straightforward when an employee’s home is also their “regular workplace” and the employee is required to travel to the employer’s office for in-person meetings. Depending on what policies and employment terms have been put into place, commuting may be considered working time for which employees could be entitled to compensation.

In Ontario, employers who employ 25 or more employees are also now required to establish a policy on “disconnecting from work.” This means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be “free from the performance of work.” In light of this requirement and the potential liabilities that employers may incur from not having clear policies in their hybrid workplace, employers are advised to have their policies regularly reviewed to ensure they include appropriate restrictions on employees’ accumulating unauthorized work hours outside of their regular work schedules.

8. Have you established appropriate health and safety measures?
Individual employees will likely have different comfort levels and needs when it comes to health and safety at the office. All employees who attend the in-person workplace should do so with assurances that the employer has taken appropriate and reasonable measures to protect their health and safety, including both their physical safety and their safety from workplace harassment. In a hybrid working environment, this may require employers to take new considerations into account, such as developing safety plans for situations where employees may be alone at the workplace at odd hours, as well as establishing methods for monitoring both online and offline communications for potential instances of workplace harassment.

When it comes to maintaining workplace health and safety, vigilance is crucial and penalties for taking the organization’s eye off the ball can be significant. For example, in Ontario, maximum fines for offences against the Occupational Health and Safety Act have increased at a dramatic rate in recent years—and are expected to rise again in 2023 from the current maximum of $1.5 million to a new maximum of $2 million for corporations found in violation.

To avoid potentially disruptive and costly issues down the line, consider a holistic assessment of your workplace health and safety policies and processes. This can help shine a light on any occupational health and safety gaps that should be addressed.

9. Are employees prepared to meet your organization’s cybersecurity needs?
Increased reliance on remote work has translated into an increased susceptibility to security threats targeting individual employees. Organizations that have increasingly relied on remote workers have also faced a significant increase in rates of cyberattacks; organizations relying on a large-scale remote workforce for the first time may find themselves particularly vulnerable to such threats. Regardless of how advanced an employer’s security software may be, untrained and unprepared employees can be a significant point of vulnerability to exploitation by cyberattack techniques such as social engineering. For employers planning to adopt some form of hybrid work for the long-term, maintaining cybersecurity requires ensuring that employees entrusted with access to secure and confidential data and network access are provided with up-to-date tools, resources and regular training to ensure that security remains airtight even when the workforce is remote.

10. Is your organization prepared for new challenges surrounding employee termination?
Termination is a sensitive subject, and that’s all the more reason to ensure that expectations and processes are clear at the outset. Terminating employees carries legal risks and can become costly if not carried out with care. Hybrid work models may introduce new challenges and questions to be answered when planning the termination process, such as:

• Where do we have termination meetings, and who attends?
• Can we hold a termination meeting over a videoconference, and would this even be preferable?
• How do we arrange for the employer’s property and equipment to be returned?
• How can a period of working notice be structured to ensure that the employee actually continues to work?
• How do remote employees get counted in a mass termination situation?

If not carefully addressed and planned for well in advance, such issues can serve as a potential source of stress, confusion and increased costs and liability in the termination process. Working with experienced legal counsel and expert advisors, employers can take measures and establish processes necessary for ensuring that effective and accountable processes are in place when needed.

For more information or to book a workplace audit or a workshop, don't hesitate to get in touch with a member of our Employment and Labour Law team.