As lockdowns once again wind down, employers are left in something of a quandary. Should they continue to allow working from home once offices can safely reopen? Will they be seen as outliers for requiring employees to return to a physical premises? How will employers juggle these new arrangements while also implementing ‘Right to Disconnect’ policies later this year?  

Statistics Canada research from late 2021 (released prior to the most recent Omicron-related round of shutdowns) showed that roughly one-quarter of Canadians were working from home – almost four times the number than in 2016. This is naturally in large part due to the pandemic, but those numbers may not change much as more and more corporations give up their dedicated office space in favour of a remote setup.  

However, another recent survey highlights different concerns. In an Angus Reid poll taken last fall, a whopping 77% of those surveyed said that flexibility of working locations will determine whether or not they stay in a job. However, nearly half of those surveyed said they felt that their careers might be disadvantaged if they chose to work remotely rather than returning to an office. The number of those concerned was particularly high amongst employees under 35 who are concerned about their opportunities for advancement if they were unable to engage face to face. Employees may want to work from home, but that does not mean that they’re entirely unconcerned about doing so.  

Has remote work now become the new normal? If so, are we ready? 

Have we set a new precedent? 

In March 2020, when we all quickly packed up our computers and headed for home, nobody expected that we would still be at home two years later. Most employees frantically put together some sort of makeshift home office provided they had the space, or were otherwise relegated to working from couches or dining tables while the chaos of home life surrounded them.  

At the time the move was thought to be temporary – if we all do our part now then hopefully this will be over in a few short weeks. That would not have been an issue from an employment law perspective. The law gives employers discretion for the most part on where employees can work from, especially if it is within a reasonable commute, and few commutes are more reasonable than going from bed to the couch.  

Yet now, with 2 years of remote work, employers may have set a new precedent. If an employee has been working steadily from home for two years, and the employer suddenly orders them to relocate back to a physical office, is that a substantial change in the terms of their work? Are employers exposing themselves to a potential constructive dismissal claim simply by going back to the office? 

The risk may be theoretical, but it’s not one to ignore. By allowing employees to work at home for any time beyond government mandates, employers have definitely set a new standard to which employees have become accustomed. Employers that sought legal advice, and explained to employees in writing that remote work would only be temporary, are in the best position to avoid a potential constructive dismissal claim. Employers who were silent on timelines, though, may face some exposure if they suddenly try to change the terms of the working relationship. 

It seems for now that most businesses that go back to an office will move to some form of hybrid work model for the foreseeable future, but those too raise questions for employers.  

Do you have the necessary policies in place? 

We often spoke about workplace policies in the early days of lockdown, and how many needed to be relaxed for the realities of daily life. You may have had a policy that prohibited cell phones in the workplace, but that’s not entirely practical when an employee is working from their couch, checking in on vulnerable loved ones who may be ill or forced to self-isolate, homeschooling little ones, etc.  

Mental health was also a key concern – compassionate employers were encouraging employees to take frequent breaks, prioritize urgent family responsibilities, and focus on staying well. They were also forgiving about life’s interruptions, such as a parcel delivery, a barking dog, or a crying baby.  

Now though, if remote work becomes a permanent fixture of your business, your workplace policies might need a further review. Some may become obsolete, such as ones relating to the physical office. Others, such as social media and technology policies, or dress codes, will likely need to be reworked. The purpose of workplace policies is not just to set expectations but also to implement discipline for infractions, so employers will need to be clear about how they are setting expectations. 

Employers simply do not have the same level of oversight over remote workers as they do those just down the hall. Despite employees working remotely, employers are still legally responsible for their health and safety in the workplace. Employers are still required to take all reasonable precautions to protect workers, no matter where they are working, and these workplace health and safety policies should also be reviewed to ensure that they fit a remote working model.  

Lastly, employers are going to need to implement one additional policy that will significantly impact remote work. The right to disconnect will soon be mandatory, requiring employers of a certain size to have a workplace policy about employees not working after hours. While the legislation does not specify exactly what must go into said policies, employers must give serious consideration as to how they plan on keeping employees engaged from home while still allowing them the freedom to power down in their off-hours. Learn more about those changes in our blog here.  

Keeping your team connected 

Along with the various employment law issues that arise, employers must also be mindful of the social realities that come from working from home. While your 2020 team may have moved from the water cooler to the couch, you’ve likely had employees transition since that time. New team members who have come onboard since the start of the pandemic may not have had a chance to meet anyone from the company in person, nor have they benefited from the same socialization opportunities that they would have had in an office.  

While virtual meetings and instant messaging platforms have made it easy to connect with each other on work-related matters, remember that the social aspect of work matters as well. Workers form bonds with each other, and even friendships, that are key to making the working environment more productive. It may be harder to plan social activities virtually (and we’re ALL tired of loud and overcrowded Zoom calls) but remember that a good employee engagement strategy can have a strong impact on employee retention.  

The upshot 

The world has changed significantly over the last two years, and there may still be changes to come as we settle into some permanent state of a ‘new normal.’ Employment issues will continue to arise, but they’ll take different forms that may be harder to recognize, so it is always important to have a resource who can help assess the best course of action without missing a step. 

We’re prepared to help all of our clients as they enter this new frontier. We routinely draft contracts and policies that are tailored to remote work environments and have handled several matters with various legal issues that are unique to work-from-home setups. We know what to look for, and just as importantly for our clients, we know how to respond. Contact us today to set up a consultation.  

Rishi Bandhu practices labour and employment law out of Oakville, Ontario. Rishi is a 1998 graduate of high distinction from the University of Toronto, Trinity College; he received his LLB from Osgoode Hall in 2003. He was called to the Ontario Bar in 2004.