Canadian Lawyer

November 2021

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32 LEGAL REPORT LABOUR AND EMPLOYMENT tions against "unsubstantiated" anxiety. As well, the employer would take details about the employee's personal life into consideration. Says Kondopulos: "Has that employee been insulated at home with near- zero in-person social interaction, or is that employee going outside regularly but doesn't want to come to work?" In the end, labour and employment lawyers say that employees and employers will have to feel their way around a post-pandemic world that will likely want to embrace greater work- place flexibility. Says Rudner: "A lot of people will have real- ized 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, and they're willing to work off-hours to make up for it. It's not as though they want to work less. They want to work differently." Employers, for their reasons, are pushing back. However, Kondopulos, like other lawyers, says it's important to distinguish what is "legal" for an employee or employer and what is prac- tical. "Employers may have to extend arrange- ments being requested by employees, because otherwise those employees will move elsewhere and secure those arrangements elsewhere." He adds that employees are incredibly mobile these days, and "it's very much an employee's market in terms of who gets to dictate the terms and conditions of employ- ment, and employers are very hard-pressed to find good, reliable personnel." Pavlic and Shah at MLT Aikins in Edmonton agree that amicably working out flexible work arrangements might be the best way to resolve issues. However, they expect much of this discussion will end up for courts or tribunals to decide. "It's certainly been a very interesting time to be in employment law, as new issues coming up constantly with respect to remote work in particular," says Pavlic. Adds Shah: "If employers can offer a hybrid work policy that gives employees the flexibility to manage their lives and prioritize what's important to them, that could be a solution. It also addresses employers' concerns about workplace culture and collegiality and having employees in the office to build sort of the kind of environment that employers desire." tion was whether this was a work injury. The judge, in that case, decided that it was. "There will be a lot of similar cases to that, and the employer can't really control the environment." For employers who want workers back in the office, Ross suggests giving reasonable notice of when the employer expects them back. Some employees may need to make childcare arrangements, pet care arrange- ments, even find a parking space because they gave their old one at the pandemic's begin- ning. "These things are not protected legally, but they make sense." Human rights laws protect employees who claim protection because of disabilities, medical reasons, family status and other categories as legal accommodation. Employers are obliged to take that information and accommodate the employee to the point of "undue hardship." Another argument in favor of not going back to the workplace is that it is an "unsafe" work environment. Traditionally, that had meant something along the lines of the absence of a guard on a piece of machinery, or the guard not working correctly, says Rudner. But that argu- ment can only go so far, especially if employers have taken every reasonable precaution to keep a safe environment — cleaning protocols, screening tools, and social distancing of work- spaces are just some examples. However, Ross points out that the Nova Scotia Human Rights Act is unusual in Canada since it includes "irrational fear of contracting an illness or disease" as a protected characteristic. Still, most Canadian employees saying they are "not comfortable" coming back to the office would likely have difficulty insisting they have a legal right to continue working remotely if called back. Kondopulos says that employers need to weigh workplace precau- "If employers can offer a hybrid work policy that gives employees the flexibility to manage their lives and prioritize what's important to them, that could be a solution. It also addresses employers' concerns about workplace culture and collegiality. " Arooj Shah, MLT Aikins LLP THE FUTURE OF HYBRID WORK When COVID-19-related restrictions completely lift, managers will require their teams to work: Source: Robert Half Talent Solutions Hybrid of in-office and remote 29% Fully in-office 56% Option to work fully remotely 56% Managers' main challenge when overseeing hybrid teams: 22% Trusting employees to get work done 21% Communicating effectively 20% Supporting professional development 18% Recognizing accomplishments 18% Gauging workloads and preventing burnout 1 in 3 professionals currently working from home would look for a new job if required to return to the office

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