Canadian Lawyer

November 2021

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www.canadianlawyermag.com 31 about collaboration and office culture would argue those calls are just not the same as in-person meetings. "You have to think, is taking a hard line on returning to the office going to affect morale? Is it going to affect productivity? What about really strong employees who have childcare issues — are you going to risk losing them to another organization that is more flexible? If you're going to insist on a 100 per cent return to the office, you're not going to get a 100 per cent positive response." He notes one client who has an employee who says she won't come into the office, and that there is a "tug of war" over whether she will return. Pavlic's colleague, Arooj Shah, says the last 18 months of many employees remotely working 100 per cent has shown that, gener- ally, productivity has gone up. Even the number of hours worked has increased, thanks to employees having their computers at home, fewer distractions and the blur- ring of work life and home life. Despite this, employees have generally embraced working from home — it helps with childcare respon- sibilities, there's less time commuting, and overall flexibility — and they want this new model of work to be permanent, even if only in some hybrid form. One issue that has emerged out of the pandemic regarding people working from home is that some employees have taken what has generally been considered temporary measures and extrapolated it into not having to come to the office as something permanent. In its most drastic version, lawyers point to employees who have decided to move a long distance away, even to other cities or prov- inces, without even telling their employer. "Some people just made the assumption that they can work remotely forever. So, they've sold their house, and they moved hundreds of kilometres away to somewhere where housing is cheaper." Rudner points to two of his files where this happened, with the employer saying, "you can live anywhere you want, but you have to work out of the office." In one case, Rudner says the employee had a good relationship with management, and they were willing to work out a deal where the employee could move and perhaps come into the office now and then, but for the most part, work remotely. In the other situation, Rudner says there wasn't as much goodwill, and the employer was very upset that the employee had not said anything before the move. The employer insisted the employee come to the office Monday to Friday, or the employer would deem him to have abandoned his job. "Similar situations, two completely different results. I think we're going to see a lot more of this in the near future." Suppose employers decide to provide employees with more flexibility to work from home permanently. In that case, Kate Ross of Barteaux Labour and Employment Lawyers in Halifax says employers must consider several things. Among them are: how to keep sensi- tive documents confidential, who has access to the work or home computer used for the work, and "trade secret" work situations that might have otherwise happened in a secure place at the office. Other significant considerations are occu- pational health and safety issues. Says Ross: "Is the ergonomic set up at home done correctly? Will there be chronic pain issues if not? If there is an injury at home, when would it be considered a work injury, and when would it not?" Ross notes a Nova Scotia case, pre-pan- demic, where a work-from-home employee had to respond to an emergency in the middle of the night. Rather than use the downstairs bathroom, the employee went to one upstairs to not disturb others in the house. She fell on the stairs and injured herself, so the ques- "It's very much an employee's market in terms of who gets to dictate the terms and conditions of employment, and employers are very hard-pressed to find good, reliable personnel." James Kondopulos, Roper Greyell LLP A COOL RECEPTION ON GOING BACK TO THE OFFICE Suppose your employer demands that you return to the office full time. What would you do in this case? Roll with it and return full time 39% Go back to the office full time, but may start looking for a new job 25% Likely quit/look for another job right away 19% Not sure 17% Source: Angus Reid Institute

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