We recently attended a webinar presented by employment and labour lawyer Stuart Ducoffe on behalf of Ceridian’s e2r Advisory Services on return to work processes and what the so-called “back at it” looks like for employers amid the pandemic. This article is derived from that event and intended for educational purposes only. It is not to be construed as legal advice and MCC recommends that you consult your legal professional on HR or employment-related matters.
Last week, students boarded buses to school for in-class learning, MCCs President & CEO participated in a couple of golf tournaments, our building managers put on a welcome back BBQ, and our team embarked on a staggered, hybrid return to the office. Does this all feel somewhat normal? Is this the “next normal” and if so, for how long?
“In a recent survey, 77% of employer respondents said they were going to go back to a hybrid model,” says webinar presenter Stuart Ducoffe (B.C.L., LL.B., CHRL) a seasoned employment and labour lawyer, founder of e2r™ and Partner and co-founder of Woolgar VanWiechen Cosgriffe Ducoffe LLP. “What does hybrid mean? It means some remote work, some in-office; but it doesn’t mean that it’s all or nothing. It’s a brand-new world and there isn’t a blueprint for any of this, so I would say employers have lots of options.”
On the plus side, the pandemic has changed the world of work in fundamental ways, which means organizations may have an opportunity to do something they’ve never had a chance or the willingness to do. For example, you could select one work mode or a combination of many: a team of entirely remote employees, some hybrid, and some full-time in-office staff. You could follow a staged approach in which you bring back critical workers first, or you could start by rotating schedules and reintegrating day by day on a gradual return to work.
“Remember: no matter the approach you take, ongoing communication with employees is going to be key. The messaging is just so critical. There is a huge psychological perspective to this pandemic, as it has been 18 months and it is not easy for some to just flip the switch.”
According to Ducoffe, the return to work may actually start off by surveying employees about their wishes around work schedule/location, which demonstrates a genuine effort to respond to their preferences. But, if you seek out opinions and invite employees to be part of the decision-making process, you need to be open to considering their input.
The perception of value in an organization is so important to engagement and retention, so if you create an opportunity for employee consultation then ignore the outcomes, it could produce the opposite effect.
“Depending on the type of organization and the industry you’re in, you may find that your surveying generates results that don’t align with what your business needs to do to. Not every position lends itself to remote work, so now it may be perceived as unfair, or an unlevel playing field. And, if your survey results demonstrate a clear or overwhelming preference for remote work, but you elect not to or cannot offer that option, it won’t sit well with employees.”
Next, Ducoffe says that a clear vaccination policy will be a key element of the return-to-work strategy.
In the last couple of weeks, we’ve seen many large employers – federal government, school divisions, private sector, and more – state unequivocally that the vaccine will be mandatory for employees. On August 19, KPMG released a business outlook survey in which they discovered that 62% of small and medium-sized business respondents were planning to make vaccination mandatory.
“Your organization needs to assess your risks and decide what you’re going to do – are you going to make the vaccine mandatory or not, and are you simply inquiring about status or are you going to request documentation?”
In addition to your preferences, it will also matter whether your organization is public, part of a federally-regulated industry like an airline or financial institution, or private sector, and if there are collective agreements in effect. All these factors will play into your decision-making, as employers have an underlying obligation to provide a healthy and safe workplace while balancing all the ethical, legal, and human rights perspectives.
From a legal standpoint, do you have the right to ask employees if they’re vaccinated, and to mandate the vaccine?
“What our legal team is advising is that yes, you can ask about status, and yes, you can make the vaccine mandatory and require supporting documentation because there is a clash of interest: a collective interest in health and safety versus individual privacy. But if you decide to mandate the vaccine, there will be existing employees who cannot receive it, or refuse to be vaccinated. There are two human rights exceptions – medical and religious – and where those situations arise, employers have a duty to accommodate. So, you will need a plan to deal with those individuals through workplace accommodations or regular COVID-19 testing.”
Ducoffe says that vaccination can be made a condition of employment for new hires, but that status should only be investigated late in the hiring process. A desired candidate should be made aware of vaccination as a condition of employment at the time of offer, because the Human Rights commission doesn’t look too favourably upon early inquiry about medical conditions.
One of the most interesting possibilities to come out of the pandemic is an opportunity for employers to assess existing employment contracts and address deficiencies.
“When the conditions of work have materially changed, such as in the case of remote work, you may be able to enter into a new contract with employees, which could benefit your organization significantly. For instance, you might decide to re-examine and put an end to termination agreements, especially if you have a large number of long-tenured employees with lengthy severance pay requirements. Realistically, if you’re investing in technology and enabling remote work permanently, you could argue this is a benefit of extraordinary value for your employees, and that they should be prepared to enter into a new agreement.”
Ducoffe warns employers not to go incorporating remote work policies into employee handbooks just yet. It’s important for remote and hybrid work models to serve your organization well, so he recommends referring to it as a pilot project. Communicate to employees that you will be continually assessing and re-evaluating to ensure the model is working, and that you may need to refine, tweak, and adjust.
“If you approach the post-pandemic return to work processes genuinely and attempt to give your teams the greatest amount of input and notice so they can acclimatize to changes, you will likely get a very positive response from your employees.”
Read up! Here are some additional resources to guide your organization through this next phase:
- 47% of Canadians want mandatory vaccines in workplace reopening policies
- Sixty-two per cent of businesses plan to mandate employee vaccines
- Posthaste: Mandatory vaccines are coming to a workplace near you
- CSA Workplaces and COVID-19: Occupational Health and Safety Considerations for Reopening and Operating During the Pandemic