Going hybrid for good Going hybrid for good Going hybrid for good

As the dust settles and changing work conditions become the new status quo, employers should take stock of the extent to which these changes have been established on firm legal footing such as: enforceable workplace policies, changes to the terms of employment, and appropriate written notice provided to employees.

Taking stock sooner rather than later can ensure that any looming legal risks can be effectively addressed and mitigated before growing into potentially significant liabilities.

When communications fail and a lack of buy-in results, effective change is unlikely to happen.

Navigating effective workplace communications and building buy-in requires a balance of legal understanding, human resources tools, and a sensitivity to workplace psychology – and shortcomings in any one of these areas can lead to issues in the other areas. For example, an employee that feels they have been ignored by management's communication style may be more likely to resort to legal action rather than approaching management when issues arise in the future.

Implementing a permanent workplace transition accordingly requires a good understanding of the legal, human resources and workplace psychology considerations that factor into an organizational communication strategy designed to invite and ensure employees' buy-in.

Although employers have the authority to make certain changes to the conditions of their workplace, that authority is not autonomous. Where an employer makes unilateral changes that are significant and impact on employees' fundamental terms of employment, there will be a legal risk that such changes will result in employees resigning and claiming wrongful dismissal based on the principle that such change amounted to a "constructive dismissal".

Mitigation approaches can be effectively built around engaging the workforce in advance of making changes – to better understand resistance points among employees, and to provide advance notice whenever possible to enable employees to prepare for future changes.

Remote working experiences during the pandemic have affirmed the important role that shared spaces and physical offices can play in facilitating valuable workplace intangibles, such as: teamwork, loyalty, workplace culture, and shared visions and missions. In turn, when such intangibles are limited or impeded, employers are likely to face a greater risk of workplace issues that may grow into legal issues.

Recognizing the added value conferred by working in shared physical spaces, hybrid workplaces are well-advised to take stock of whether their practices have optimally leveraged in-office time to achieve these intangibles by building teams, creating inclusive work cultures and to effectively on-boarding new members onto existing teams. Where the issues are complex, engaging an expert can help provide valuable and timely guidance.

As many employees have become accustomed to working remotely 100% of the time during the pandemic, workplaces that now expect employees to return to in-office for part of the time under a hybrid model may need to consider approaches to motivate the return to office. Approaches may include both "carrots" (i.e., in-person events and commuting allowances for employees who attend the office) or "sticks" (i.e., disciplinary measures).

Any such approach will likely carry some risk from a legal and human resources perspective, making it crucial to plan your organization's approach in advance based on a broader overall strategy.

To some, the benefits of working from home and saving on a costly commute are 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 receive their preferred balance of in-office and remote work while others do not. At the same time, allowing employees to individually select different proportions of in-office and remote work time may result in perceptions among colleagues that those who are less frequently visibly working at the office are 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 do not grow into significant challenges that can impact on the workplace or even result in legal disputes. Engaging with an expert advisory team can help your organization plan its strategy and prepare appropriate policies to ensure that such processes are in place as part of your approach to hybrid work.

Difficulties in tracking exactly how many hours of work employees are performing can lead to a potential liability for unpaid work hours and even unpaid overtime entitlements accumulating over time and across employees.

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 in-person 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 an in-person meetings. Depending on what policies and employment terms that have been put into place, such commuting time may be considered working time for which employees could be entitled to compensation.

Other areas where employees may accumulate additional working time include answering emails at off hours, and performing "work in advance" on long-term projects.

Hours of unpaid work is an area of potential liability that can start small, but can accumulate over time and across employees at a large workplace, making it important for employers to have clear policies and employment terms establishing when employees are considered to be working, and when work is not permitted to be performed.

In Ontario, the passage of the Working for Workers Act, 2021 (i.e., Bill 27) requires Ontario employers who employ 25 or more employees to establish a policy on "disconnecting from work", which 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, employers should to consider having policies that include appropriate restrictions to ensure that employees do not accumulate unauthorized work hours outside of their regular work schedules.

Recognizing these concerns alongside the need to ensure employees' health and safety at the physical workplace, many employers have put some form of an employee vaccination policy into place during the past six months.

Under a hybrid work model, administering employee vaccination policies can bring additional challenges that should be navigated with care to mitigate potential liabilities and to set appropriate precedents. For example, employers may need to consider how hybrid work arrangements will apply to employees who are not vaccinated, and whether a hybrid work option will be available only to employees who have been fully vaccinated.

Ensuring workplace health and safety also does not end with a vaccination policy.

Vaccination-related requirements should form part of an employer's larger, comprehensive COVID-19 safety plan that sets out the employer's approach for:

• Alternative arrangements such as rapid-testing
• Addressing potential infections at the workplace
• Determining when and where employees are required to take additional precautions such as wearing a mask and maintaining distancing.

Employers should also ensure that they have turned their attention to addressing how their hybrid work model aligns to the features of their COVID-19 safety plan. For example, would employees attending the office be advised of the vaccination status of others who are attending the office on the same day?

A holistic expert assessment of workplace health and safety policies and processes can help shine a light on any gaps that should be addressed in order to avoid potentially disruptive and costly issues down the line.

During the pandemic, organizations that turned to remote work faced a significant increase in rates of cyberattacks, and organizations relying on a large-scale remote workforce for the first time may have found 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 cyberattackers who rely on techniques such as social engineering. For employers planning to adopt a hybrid working model 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.

Terminating employees carries legal risks and can become costly if a termination is not carried out with care. To increase the likelihood of a smooth and amicable termination and transition process, it is important for employer organizations to prepare termination processes that anticipate the challenges and potential costs of employee terminations.

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 a preferable option?
• 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 perform work?

These concerns and many others can serve as a potential source of stress, confusion, and increased costs and liability in the termination process if not carefully addressed and planned for well in advance of a termination meeting.

Working with experienced legal counsel and expert advisors can enable employers to take measures and establish processes necessary for ensuring that effective and accountable processes are established and in place when needed.