Again Warned Staff You Do Not
Employers be warned: If you aren't careful, remote work could become a permanent characteristic of your staff'due south employment terms
Howard Levitt: Order them back the part now or risk a constructive dismissal activity later
With two recent important pronouncements on both sides of the border, employers are worried about whether they tin can proceed up with the e'er-evolving bug surrounding COVID-nineteen. Today and next Saturday, I volition answer the many employment law questions swirling about.
Merely beginning, those proclamations.
Prime Minister Justin Trudeau appear that all federal government employees, including Crown corporations, must be vaccinated in society to retain their jobs, even if they work from home. This is revelatory since, absent-minded legislation, employers could never hogtie employees — who they had permitted to piece of work from habitation — to be vaccinated.
South of the border, Ken Griffin, founder of hedge fund Citadel LLC, publicly pronounced: "It is time to get employees dorsum to work considering working from home prevents the mentorship, interactions, managerial experiences and substitution of ideas allowing U.S. businesses to prosper."
He noted that, for younger employees, "the loss of early career development opportunities is going to cost us dearly over the decades to come."
Just he cautioned that "if you lot talk to other CEOs, they live in fear of how nosotros volition be publicly persecuted for delivering this straightforward message: It is fourth dimension to go back to work."
As he put it: "Nosotros need information technology for our government workers. Nosotros need it for corporate leaders. We, equally a country, it's time to become back at it," asserting that remote work was dissentious America'due south competitiveness relative to Chinese workers. He called for U.S. President Joe Biden to deliver that message from the top.
Below are my recommendations to some of the questions that are perplexing both employers and staff.
Can, and should, employers require employees to return to their workplace?
What is true south of the edge is every bit so here. Most employers are anxious to become their employees back into the offices. A study on the productivity of the Canadian workforce by enterprise firm Aternity Inc. found that employees who work from abode are 22 per cent less productive per hour worked relative to those at the office and, more alarmingly, found that productivity gap increases the longer employees remain dwelling.
This desire to get employees back to the function is juxtaposed with a different competing fear, that ordering employees back to piece of work will event in many resigning at a time when it is already difficult to recruit and retain for almost positions. The majority of studies have shown that employees working from home wish to continue to do so, at least part of the time, and a meaning percentage of the workforce is already considering changing jobs. Therefore, ordering employees back to the office against their will will result in many employees resigning, in an era already called The Great Resignation.
Some employees work as, or more than, effectively remotely. Employers have the legal choice of permitting that for those who practice. Companies can also legally discriminate by permitting some employees to work from home and not others. That selection can be based on productivity, the type of work, or any criterion that they wish, fifty-fifty arbitrarily. Employers will have to conduct a delicate balancing act in deciding who will be permitted to continue remote work equally our offices reopen.
Can employers order employees dorsum to the office?
Employers have the unequivocal right to force employees dorsum to work and to declare them to have abased their employment without compensation if they decline.
Q: Is there a gamble from permitting continued remote work?
A: I upshot a cautionary note. If you lot permit employees to piece of work from abode much longer than practically and legally necessary, information technology will go a term of their employment. Ordering them back to work after that will institute a effective dismissal. Nosotros are reaching that tipping bespeak now.
I recommend that any employer who wishes to permit employees to work from home for much longer have these employees sign contracts agreeing that they tin be recalled to the workplace upon one month'due south observe. If they refuse to sign, society them back now or risk a constructive dismissal action afterwards.
Q: Who pays the expenses of remote working?
A: I am often asked whether employers are required to pay the inherent expenses of employees working from home. There is no such requirement.
Q: Should you have a formal vaccination policy?
A: Every employer should have a vaccination policy, distributed to all employees, to ensure that everyone understands the rules. Such a policy provides management to employees and protection to the employer in the event of litigation.
I am constantly asked by clients what that policy should contain. The answer is simple. Whatever the employer wishes it to. Subject to compliance with public health guidelines, there is tremendous flexibility in potential vaccination policies.
Whether you should crave mandatory vaccinations and for what groups is a function of the employer's corporate civilisation and what makes most sense in its detail context.
Q: Should you require mandatory vaccinations?
A: A mandatory vaccination policy will invariably issue in some employees parting. Concomitantly, not having such a policy volition upset those vaccinated employees who do not wish to work near the unvaccinated. That is part of the balancing employers must consider.
COVID-xix has become a pandemic of the unvaccinated. The vast bulk of employees contracting COVID-19 and, in particular, filling our hospitals are unvaccinated, particularly telling since only about 20 per cent of Canadians are unvaccinated.
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A compelling argument in favour of compulsory vaccinations for those employees who work closely with co-workers, customers or members of the public is that if someone contracts COVID-19 in that workplace, the employer cannot be successfully sued for negligence.
Given that most governments and main medical officers across Canada now support mandatory vaccination, it will not be long earlier a court may find a 'duty of care' in workplaces requiring mandatory vaccinations and that employers who do not require it are, prima facia, negligent if someone contracts COVID-nineteen in that workplace.
If the result is decease or permanent disability, the legal lawsuit could be in the millions of dollars. Since litigation is determined based on the law at the fourth dimension a matter reaches courtroom, this — still hereafter — duty of care may well employ to a company'south deportment today. That further militates in favour of mandatory vaccinations.
Got a question about employment law during COVID-xix? Write to Howard at levitt@levittllp.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment police in eight provinces. He is the author of vi books including the Law of Dismissal in Canada.
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Source: https://financialpost.com/fp-work/employers-be-warned-if-you-arent-careful-remote-work-could-become-a-permanent-feature-of-your-staffs-employment-terms
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