Canadian Lawyer

February 2021

The most widely read magazine for Canadian lawyers

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4 UPFRONT NEWS ANALYSIS AS THE crisis management of 2020 moves to 2021 long-term planning, many employees are opting to permanently work from home, while others are looking for a hybrid approach. For employers, that means tools that existed before are gaining new traction. It also means the need for clarity in policies is becoming increas- ingly clear. "The change that was incrementally happening for a number of large businesses just advanced years in the space of a few months," says Kathryn Bird, a labour, employ- ment and human rights lawyer in Hicks Morley LLP's Toronto office. "The monitoring and employee engagement tools and best prac- tices that were already being developed in 2018 and 2019 are going to be more widespread." Sari Springer, managing partner of the Toronto office of Littler Mendelson P.C., says that, in addition to keeping employees engaged and motivated — which is difficult when they're working remotely — employers have a duty to inquire under human rights legislation "if they start to notice signs of an employee not being healthy or not functioning in the way that they're normally accustomed to seeing them in terms of productivity or energy. "That's an issue that employers are grap- pling with, not crossing the line in terms of prying into someone's personal life but at the same time being sensitive and cognizant that employees may need some assistance," Springer says. Daniel McDonald, a labour and employ- ment lawyer at Norton Rose Fulbright Canada LLP in Toronto, predicts an increase in claims for overtime in 2021. "A lot of that is going to be flowing from employers' inability to precisely monitor hours of work from home in many contexts. We're seeing more and more employees asking the question, 'When does my workday end?'" While temporary work-from-home arrange- ments were the norm in 2020, if employers do want to make these arrangements perma- nent in 2021 to save on office space or improve employee retention, they will have to think through the implications before they sign off, lawyers say. In addition to risks of overtime claims, health and safety, tax, office expense and loca- tion issues can create complexities. "If you have a business that's being operated in Ontario and only operates in Ontario but an employee goes to Sicily, what does that mean for the company?" McDonald asks. Christopher Munroe, a partner at Roper Greyell LLP in Vancouver, says that, if employers are going to have a permanent "That's an issue that employers are grappling with, not crossing the line in terms of prying into someone's personal life, but at the same time being sensitive and cognizant that employees may need some assistance." Sari Springer, Littler Mendelson P.C. Planning the 2021 workplace Many of 2020's work-from-home arrangements could become permanent in 2021, but employment lawyers say planning is key to avoid unforeseen consequences, writes Tim Wilbur

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