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Author:
Arjun Dhir

Date:
2020.10.28

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THE EMPLOYERS' EDGE

There’s No Place Like Home: Remote Work in the Post-Pandemic Era

Given that COVID-19 cases in Ontario are consistently hovering around 800 new cases per day – it is understandably difficult to imagine a future beyond the COVID-19 Pandemic (the “Pandemic”). However, there is one trend that we believe will likely remain prominent, well after the Pandemic is in the rear-view.

Due to the isolated nature of the Pandemic, the adoption of remote work or work/working from home (“WFH”) was a trend that experienced sudden and rapid growth. For instance, as of April 2020, Statistics Canada approximated that over 40% of Canada’s workers were working remotely. This represented a substantial shift from the less than 10% of individuals who were permitted to WFH intermittently, pre-COVID.

On the face of it, this drastic increase is understandable. The Pandemic has necessitated a lockdown, which has temporarily shifted many workers from the physical office to a WFH setting. However, in many jurisdictions, it appears that the Pandemic may have effectively “let the cat out of the bag”, which may make it challenging to turn back. For instance, a number of European nations including Spain, Greece and Ireland, have already began drafting “remote-work legislation”. Germany has taken this one step further, by proposing the introduction of new legislation that would give workers the legal right to work from home. In the same vein, some of the world’s most recognizable companies, including Microsoft, Facebook and Twitter, have announced that many of the roles within their respective companies will remain remote permanently.

Now bear in mind – Canadian provinces have not followed in the footsteps of their European counterparts and the right to WFH remains a privilege. In this regard, it is important to note that employers are not required to allow employees to WFH simply based on their preference. This is particularly true when the nature of the employee’s work is not conducive to remote work and/or when the employer has taken proactive steps to ensure the office space is designed to allow for social distancing.

Nonetheless, according to Statistic Canada, over 25% of Canadian employers indicated that they were likely to offer their employees the option to work remotely following the Pandemic. As such, it is clear that remote work in some heightened capacity is likely here to stay.

Challenges and Concerns Associated with WFH

When the world shut down due to the Pandemic in mid-March 2020, the shift towards remote working was sweeping. The Pandemic undoubtedly accelerated the shift towards remote work in a way that had previously seemed unimaginable, and forced employers to move past long-standing reservations. The good news is that the past eight months have essentially acted as a lengthy “proof of concept” for the notion that work could be successfully conducted outside of the physical workplace.

For instance, according to LinkedIn’s latest Workforce Confidence Index Report (the “Report”), many of the challenges and concerns previously associated with remote work have experienced a significant improvement over the past several months. Specifically, the Report indicated that only 20% of those surveyed remained concerned about experiencing a loss of productivity while working remote – representing a 20% improvement from those surveyed pre-Pandemic. Further, remote workers appear to be settling into their new workspaces, as over 75% of those surveyed indicated that they were currently satisfied with their WFH set-up (i.e. physical workspace, materials, technology, etc.).

While the transition to WFH has been relatively steady, the Report did bring to light various concerns which persist for remote workers. Specifically, over 25% of those surveyed indicated that they still encountered challenges with communicating with colleagues and clients. Further, a staggering 36% of those surveyed noted that they felt socially isolated and/or struggle to balance their personal and professional lives while working remotely. Lastly, nearly one-third (32%) of those surveyed indicated that they worked longer hours while operating remotely.

Legal and HR Best Practices

Taking into consideration the unexpected shift to remote work – it is unsurprising that employers have experienced a few hiccups along the way. However, as employers settle into the “new normal”, we recommend incorporating the following best practices to optimize WFH arrangements:

  • Develop a Comprehensive WFH Policy – Set out the parameters of the new working-arrangement and clearly communicate expectations for employees while they are WFH;
  • Be Cognizant of WSIB And Occupational Health And Safety Obligations – Employers must be aware that the concept of “workplace” is defined broadly in applicable workplace legislation. Accordingly, an employee’s home office is reasonably considered an extension of the “expanded workplace”. As such, employers need to ensure that employees understand the importance of working safely, as well as their obligation to continue operating as if they were in the employer’s physical workplace – even while working remotely;
  • Maintain an Open Line of Communication – Employers are recommended to maintain or increase touch points with employees working remotely. Employers should conduct periodic check-ins, establish a set meeting time each week to carry-out in-depth huddles and continue conducting regularly scheduled performance reviews. While employers may no longer share the same office space with employees, a presence as their manager should still be felt at all times;
  • Utilize All Available Technology – Gone are the days where the only way to communicate with remote staff or clients was to pick up the phone and start dialing. Rather, we are currently operating in the midst of a technological communication golden age. Slack, Zoom and Microsoft Teams, are just a few of the emerging software that make workplace collaboration, screen mirroring and video conferencing simple to introduce and regularly utilize with employees and clients;
  • Establish a Cyberbullying Policy – With the recent introduction of the host of new technologies into the “expanded workplace” – employers must make employees aware of the conduct that is expected of them when utilizing these platforms. As such, it is imperative that employers establish a comprehensive Cyberbullying Policy, or incorporate “cyberbullying” into existing Workplace Harassment Policies. Employers must outline unacceptable online behavior and the consequences for those who engage in it;
  • Allow Employees to “Sign-Off” and Monitor Overtime – When your office also happens to be your home, it is easy to understand why employees are finding that the lines delineating the two are increasingly blurring. In this regard, employers are encouraged to establish clear boundaries – whether explicit or implied, which allow employees to shut down at the end of the day to avoid burning out. At the same time, to proactively ensure that employees are not working outside of their scheduled hours, employers are recommended to establish and communicate a pre-approval process for any overtime work; and
  • Offer Mental Health Support – The Pandemic has undoubtedly affected all individuals in different and unexpected ways. As such, it is recommended that employers play an active role in maintaining the mental health of their employees. Employers should also make employees aware of any available counseling and support services provided by Employee Assistance Programs (“EAP”), which are commonly offered by the employer’s benefit provider.

The CCP team can assist employers experiencing difficulty navigating their obligations in light of the COVID-19 Pandemic, with expert legal advice and ways to minimize liability. Please contact one of our lawyers who can assist with all of your workplace concerns.

With news and developments relating to the COVID-19 Pandemic occurring at a rapid pace – be sure to stay tuned to our Employers’ Edge Blog and Lawyers for Employers Podcast series. The team at CCPartners will continue to update our readers and listeners on all other pertinent developments regarding benefits and legislative changes related to COVID-19.

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