In a survey last year, almost two-thirds of Canadian workers said they preferred a hybrid or remote workplace. One-in-three workers would change jobs if their employers mandated an exclusive return to the office, according to a recent survey. Flexible and remote preferences are reflected by work models. There are new legal considerations and best practices for safe, equitable spaces along with the culture shift.

Some employees may need additional support to succeed in a hybrid workplace, even if it is because of protected grounds under human rights legislation or performance needs, says a labour and employment lawyer. She spoke about the topic in April.

Companies may have different concerns about inclusivity. Workers who are required to work in the office may dislike their teleworking colleagues. Employees who have gone remote may not feel at home in the workplace.

It’s important for the team to receive equitable treatment. Right now, there is a challenge with recruitment and retention. People may not want to join an office where they feel like they are not part of a cohesive team.

She suggests that employers listen to and survey for input and develop policies and practices that account for various types of work.

If you have more traditional markers of success or commitment, give some thought to whether you need to adjust those metrics to match. Are you no longer rewarding people who spend the most time in the office?

Managing changes to terms of employment, overtime and employee attendance

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 a labour and employment lawyer.

The recall of an employee who was previously allowed to work from home three days a week amounted to constructive dismissal according to Hagholm v. Coreio Inc. The terms of employment were changed without the worker’s consent.

A commute-free, remote office culture is forcing more people to work from home due to choice or lost time. They may be entitled to more pay for time spent in a role. When people are working remotely, it is important to make sure everyone is aware of the parameters around working longer hours and overtime, and the obligation to track and record those hours.

Whether it’s logging in and out on a traditional 9-to-5 schedule or working within flexible hours, employers should set boundaries when the work day ends.

Privacy and confidentiality in the home office

Employers who employ 25 or more workers have to have a written policy on electronic monitoring. Bill 88, the Working for Workers Act of 2022, 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

She says that home offices are still in the home. Even with a work computer, there is no expectation of privacy.

The policy must identify whether an employer electronically monitors employees and, if so, describe how and in what circumstances employees are electronically monitored and how they may be used.

If companies don’t engage in e-monitoring, it’s a good idea to do a quick sweep to see if contracts, collective agreements or policies touch upon this practice. She advises updating an acceptable use policy, which establishes rules that a user must agree to for network access, due to Bill 88 as well as new considerations.

She says that if e-surveillance is used to keep track of vehicles used in the workplace, mileage or locations visited on any given day, there is a pre-existing arrangement that exists. 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 done on home or company networks.

Protecting health and wellbeing in remote workplaces

Employers are required to take reasonable precautions to protect the health and safety of their workers under provincial labour laws. There is an exception for private establishments.

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

Employees performing job duties on the road, in other remote places or in the office are generally covered by the workplace safety and insurance board.

It’s a good idea to create a risk assessment checklist that will give employees a step-by-step review of their working environment at home or the office. It supports a culture of safety for employees.

For instance, loose cables and back-friendly ergonomics, she advises asking employees to sign back.

‘The duty to accommodate applies at home’

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

It will likely be a very case-by-case and fact-specific situation in which high-risk employees may continue requesting remote work or a hybrid model.

If an employee can’t fit into the hybrid work model because they have a legitimate document for human rights related reasons, then they need to go through anaccommodation process. There are other reasons that people can’t fit into a hybrid workplace. There is going to be a lot of flexibility and creativity.

Home-working employees may need office equipment.

Meeting needs aren’t a one-size-fits-all solution. Disability leave for strictly in-office roles, bundled job duties, or full-time or part-time remote work are possibilities. Even if the statue doesn’t apply, many companies are exploring a flexible schedule for work-life balance.

According to LifeWorks Inc.’s mental-health index in May, close to half of Canadians say that the pandemic has negatively impacted their mental health.

They are not the same people who were there before. Employees can feel drained or bored because their life has been penetrated.

Workers may be anxious to connect with their colleagues or exhausted from video calls. Fight digital exhaustion with acceptable in-person arrangements, invest in better benefit plans and allowances, change traditional working hours for balance, focus on active engagement, and set clear expectations are some of the strategies the lawyers offer for tackling declining mental health.

As more people ditch urban life for small towns and other provinces, bringing their home office with them, companies are encouraged to clarify jurisdictional issues that come from teleworking across any border.

Employees may need visas or work permits. Companies may need to carry on with their business in that jurisdiction if they want to register for workers compensation and review local employment laws.

Tips for hybrid and remote work policies

A hybrid or remote work policy outlines when and how employees can work outside the office and should include all leaders within the organization. This is a document that can be changed.

The lawyers advise this policy reminds employees of their obligations and reiterates the code of conduct as workplace harassment can also happen in remote set-ups.

It is possible for companies to 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.

olicies 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 It will put you in a good position to have a strong, effective, cohesive hybrid workplace if you set out guidelines and general principles for your employees.