Canadian Lawyer

November 2021

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30 www.canadianlawyermag.com AS CANADIANS slowly emerge from the COVID-19 cocoon we've been living in over the past 18 months, one thing has become clear — for most of those who have been working from home through the pandemic, the prospect of going back to the workplace full time is something to which they are not looking forward. And for some, going back five days a week is something that just isn't going to happen, as far as they are concerned. If they can't convince their current employer to be more flexible about working remotely, they'd rather quit and look for an employer who is. An Angus Reid Institute survey released in August makes it clear where most employees stand. In answering the question, "Suppose your employer demands that you return to the office full time, what would you do?" The answers: 19 per cent would likely quit and look for another job right away; 25 per cent would go back to the office, but may start looking for a new job; 39 per cent would "roll with it" and return full-time and 17 per cent were not sure. On the flip-side, many employers are Thanks to COVID-19 measures, employees are embracing working from home, employers not so much, writes Zena Olijnyk Flexing workplace flexibility muscles leaning in the opposite direction. A survey of senior managers in Canada done by HR consultancy, Robert Half, indicates 56 per cent will require their teams to be on-site full time once COVID-19 restrictions lift. About 30 per cent would follow a hybrid schedule with time divided between the office and home, and 13 per cent suggest they would allow workers to work remotely full time. Given the apparent employer-employee divide in feelings towards a return to the office, labour and employment lawyers say they have been fielding daily calls from employers and employees about their legal rights and how to move forward. Toronto-based Stuart Rudner works with both employees and employers. He says management views fall into two camps: "those who want things to go back to the way they were as quickly as possible and those who realize that a lot of work can be done remotely just as efficiently at a reduced cost." And, of course, some recognize that a hybrid model — offering some flexibility — might be the compromise needed. Of course, there are legal considerations LEGAL REPORT LABOUR AND EMPLOYMENT — what employers expect of employees and what employers must provide — and busi- ness considerations. And lawyers who work with employers suggest that their clients must consider both to develop a workable solution. The starting point, says Vancouver-based James Kondopulos of Roper Greyell LLP, is that "employers have the right for their employees to be in the office performing their jobs as they did pre-pandemic." In the panic of the first days of the pandemic, most employers told workers that working from home was a temporary measure, he says. Of course, there might be employees who already had signed contracts that allow them to work remotely. And there are employers who, after sending workers to work from their homes in March 2020, decided to give up their office space and move to a full-time virtual or remote platform. But any employer who asked workers to stay home temporarily was messaging that they were "preserving the right to require employees to come back to work, as was the pre-pandemic status quo." Walter Pavlic, a labour and employment- lawyer with MLT Aikins LLP, based in Edmonton, notes employers legally "get to call the shots" on where employees work. "There is a reason why employment law was once called the law of 'master and servant,'" he says. For practical reasons, it makes sense to look at the situation to find solutions that appease employers and employees. Questions one should ask include whether employees can work productively from home, Pavlic says, siting an example of someone working in a call centre who is in a cubicle dealing with customers, and who may only interact with colleagues during their breaks. There may be a good argument to keep remote work with today's technology to monitor whether the worker is working (maybe even down to the keystrokes and minutes for each call). There might even be advantages in cutting costs through measures like reducing office footprint. On the other hand, Pavlic says many work- places rely on a culture of people talking to others and collaborating. While it's physi- cally possible to collaborate through Zoom or Teams calls, most employers who feel strongly "A lot of people will have realized that they want to have more flexibility and be at home, take some time during the day to handle personal matters, look after the kids..." Stuart Rudner, Rudner Law

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