Working Remotely - How Ontario Employers Adjust to a New Workplace

In the age of the coronavirus pandemic, employees working remotely has become as much the “new normal” as wearing personal protective face masks in public.

The coronavirus pandemic brought with it many significant health, financial and psychological disruptions on a massive, global scale. In the area of labour and employment, it resulted in unprecedented temporary layoffs and terminations of employment, as workplaces were forced to shut down during government quarantine orders.

As governments begin allowing businesses to gradually re-open, many employees find themselves in situations where they are transitioning to a new kind of workplace – one likely much different than the workplace they last attended. Among the many new changes employers are implementing, the notion of a “virtual” workplace where employees work remotely from home represents a sea change for most businesses.

From large employers to small businesses, and from federal public service workforce to private employers across Canada, the coronavirus pandemic forced a new reality for organizations, and many had to quickly adjust to a virtual (some would say modern) workplace.

For instance, a recent Statistics Canada study found that, before the coronavirus pandemic in early-February 2020, about 63% of Ontario workplaces had virtually no remote working arrangements. However, following the pandemic, that number decreased dramatically to 38% by late-March 2020. In other words, as a result of the coronavirus pandemic, many workplaces have implemented some form of remote working arrangements to allow their employees to work from home.

Working remotely offers many advantages and flexibilities, for both employees and their companies. However, in managing the transition, there are a few important considerations that all employers and employees may wish to keep in mind by seeking the advice of an experienced employment lawyer.

1. Accommodations and Health and Safety Concerns

It will certainly not be the case that all (not even most) businesses will shift to a virtual workplace with all of their employees working remotely. In fact, some recent surveys suggest that approximately only 20% of employees expect to continue working primarily from home. While that is likely far more than was the case before the coronavirus pandemic, it also suggests many employees will (at least in the short-term) be required to return to a physical office location. In doing so, there are important practical considerations to be kept in mind.

While by and large, most employees will likely be able to return to their traditional office environment, there will also be some employees with serious health and safety concerns. Among other things, employers will need to ensure they follow the essential guidelines set by Health Canada, including continuing physical measures, providing personal protective equipment (e.g., gloves, masks), and offering mental-health support to their employees.

Perhaps most importantly, employers will need to recognize there may be some employees who need special consideration based on their individual circumstances, such as personal health issues that may make them (or their immediate family) more vulnerable interacting with others in the workplace, or commuting back and forth to work. For these employees, Ontario employers need be mindful of the following important obligations:

- maintaining a workplace that is free of health and safety dangers on the job, since the Occupational Health and Safety Act that requires employers “take every precaution reasonable in the circumstances for the protection of a worker.”
- helping employees who require human rights accommodation at the workplace on the ground of disability or family obligations (e.g., medical leave of absence, assisting with childcare requests, flexible work schedule, reduced hours of work, reshuffling of job duties)
- avoiding the risk of constructive dismissal claims by forcing employees to work in intolerable conditions, including a dangerous work environment

2. Changing Employment Contracts

As working remotely becomes more common, many employees will appreciate the increased convenience and reduced costs associated with not having to commute to work (no more need to load that Presto card!). As some observers have recently noted, some employers may attempt to use these positive changes of working remotely as “job perks and benefits,” and may attempt to justify a reduction in their employees’ salary and compensation.

From an Ontario employment law perspective, employers will likely find making such drastic changes to an employee’s terms and conditions of employment easier said than done. Unless an employee consents to significant changes to an important aspect of their job, such as a decrease in compensation, an employer’s decision to unilateral force them may constitute a constructive dismissal entitling an employee to a financial severance package.

Similarly, employers may attempt to renegotiate employment contracts (or create new ones where none exist). Among other things, some employers have learned the value of having prior employee authorization before making important changes to an employee’s job, including using a temporary layoff. However, as discussed previously, changes to an employee’s existing terms of employment require “fresh consideration” in order to make a new employment contract legally enforceable.

In other words, requiring employees to agree to a new employment contract governing their terms of their job, including an employment termination clause setting out their termination pay and severance pay, is a delicate task that requires legal advice from an employment lawyer to understand and implement their objectives to protect the interests of their business.

3. Workplace Policies

A key makeup of any organization is the workplace policies it has in place to address the various areas of the employment relationship. To minimize and effectively resolve disputes, it is well-known that employers should have and train their employees on their workplace harassment policies (which is mandatory in Ontario). However, when it comes to the transition to the “work-from-home” arrangements, other areas employers most employers have turned their mind to include policies dealing with:

occupational health and safety concerns by clearly outlining all workplace hazards, including the risk for contracting the coronavirus and what steps are in place to prevent and deal with any cases
use of workplace technology that clearly outline intellectual property issues, privacy and acceptable use of company equipment/technology
confidentiality requirements regarding sensitive information
medical disability or family-related accommodation policy
how employee productivity will be monitored/measured

Contact

If you are an employer who would like to discuss how to prepare your workplace to adjust for remote working, including refreshing your employment contracts and workplace policies, contact Bune Law for assistance and detailed analysis of your workplace needs and solutions.

If you are an employee adjusting to working remotely for your company and you would like to discuss changes your employer has proposed to your employment arrangement, including signing new employment contracts, feel free to contact Bune Law at 647-822-5492 to get legal advice regarding your specific rights and options.

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