“Return” to work? | S2 EP3

The workplace Canadians are “returning” to is not what it was two years ago. The way we work – what, where and how we do it – has changed, and it’s brought rapid developments in the law. This episode starts by looking at the big-ticket issue: mandatory vaccination policies. We then look more broadly at the evolving definition of the workplace, and consider what recent case law can tell us about attitudes to employee rights when it comes to remote working, including the right to disconnect, pay equity, and discrimination risks. Joining us for this important, timely topic is employment and labour partner Jeff Landmann and associate Preston Brasch. 

For more information, check out Norton Rose Fulbright’s content hub for practical guidance, timely updates and strategic insights: Return to the workplace.

CPD credits: This episode qualifies for 0.75 hours of Substantive credit in Ontario and 0.75 hours of Substantive credit in British Columbia.

Transcript

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Transcript:

Ailsa Bloomer  00:11
Hello and welcome to Disputed with your hosts Ailsa Bloomer from Calgary and Andrew McCoomb from Toronto. And this episode is called return to work. Broadly speaking, it's about issues that organizations may encounter with employees returning to the workplace. But first, what is the workplace? Even before COVID this was not a straightforward legal question. And thanks to the past two years of global pandemic, answering that question is now even more complicated. How we work and where we work is changing. More fundamentally, are we experiencing an evolution in what it means to work, i.e. work as a series of deliverables as opposed to 10 hours in the office Monday to Friday? That's a really interesting idea, and one that hasn't been revisited in the modern Western world for over a century and arguably even since the Industrial Revolution. As a former history student, I personally find that a fascinating question, but I appreciate that's perhaps for a different podcast. So we start this episode by looking at the big ticket issue at the moment, and that is mandatory vaccination policies. When can they be challenged and on what grounds? We then look more broadly at this definition of the workplace and consider what recent case law tells us about the attitudes to employee rights when it comes to remote working, including the right to disconnect, pay equity, and discrimination risks. And talking us through these issues are Jeff Landmann and Preston Brasch. Jeff is a partner in our Calgary office, and he helps employers negotiate employment contracts, policies and procedures, as well as representing them in litigation, arbitration and human rights claims. Before joining us, Jeff was the vice president of labour relations and governance for a major commercial airline. Preston Brasch is an associate in our employment group, and his practice includes advising on employment agreements, immigration, and privacy law matters. And if you want to read more about this topic, our Global Employment and Labour team has produced a series of short papers looking at the opportunities and risks of the transforming workplace. And a link to this is in the description. 

Ailsa Bloomer  02:40
Okay, so this episode is about returning to the workplace. Jeff, start us off. What are some big ticket questions that employers are asking you right now when it comes to moving back into the physical office space?

Jeff Landmann  02:53
Sure. Well, I'm happy to kick it off and obviously Preston feel free to jump in with any of your observations, too. In terms of the first set of issues that are really quite topical for many organizations are, how to deal with mandatory vaccination. And having ruled out, in many cases, mandatory vaccination policies, what now is sort of the actions that are being taken as a result of that and what sort of trends in terms of disputes are we seeing from individuals who are challenging those mandatory vaccination policies?

Preston Brasch  03:24
I think, too, one of the questions that some employers are asking are what types of accommodations they need to provide to employees, what their duties are as employers when employees assert that they have grounds for accommodation when it comes to vaccination policies, such as religious grounds or medical exemptions. The collection of this data, this information, also raises concerns about privacy issues. So, employees are concerned about who has access to their medical information, how it's being stored, and what's being done with their information, ultimately.

Andrew McCoomb  04:01
So maybe starting from the top there with the types of disputes that Jeff has flagged, what are some of the bases on which people are objecting to mandatory vax policies or some of these return to work type policies that we're seeing in-- in the courts, and how are they playing out?

Jeff Landmann  04:19
Yeah, it's a really good question Andrew. Just to back it up, pre-pandemic, the ability for an organization or an employer to impose a mandatory vaccination policy would have been very, very narrow and-- and really only in those cases where there was a true necessity. So if you think about sort of the hospital setting or some-- some other very narrow types of circumstances where that level of safety was required would a-- would a mandatory vaccination policy really have been defensible. And, that landscape has shifted greatly in terms of what we are seeing with organizations as well as what-- what there is public acceptance for in the debate around it. And so, in the last six months or so you would have seen a lot of organizations rolling out mandatory vaccination policies to the end of the summer of 2021 and into the fall. And then we started seeing sort of that first wave of challenges. And interestingly, unlike the pre-pandemic context, there seems to be a fair bit of support emerging, particularly in the labour arbitration context and from human rights tribunals around support for the reasonableness and the necessity of mandatory vaccination policies for many employers. And so, you know, those tend to be sort of the primary grounds that employers really need to look at in terms of justifying the imposition of a mandatory vaccine policy. You know, ultimately, what is the necessity in the workplace to maintain health and safety? And then is the policy itself reasonable in terms of the circumstances?

Ailsa Bloomer  05:53
So the test that is emerging appears to be one of necessity and reasonableness in the context of your organization and possibly industry. But, what does a reasonable mandatory vaccination policy look like?

Jeff Landmann  06:07
Yeah, absolutely. What we're seeing is, I'll take the labour cases for example, arbitrators are taking a look at, what is the background commercial context and what are the safety considerations? In a number of the cases, the requirements of third-party customers or clients or whoever the employer services, if they require vaccination to attend on-site, that's been a pretty significant consideration. Very difficult to keep running your business as an organization if you're not allowed to send your employees to a customer's site. In the context of-- of the labour cases, unionized work environments, the question also comes up as to, you know, what is the ability of management under the collective agreement and management rights to be able to impose the policy? Is there discretion there and otherwise, what else does the collective agreement say about vaccination or the ability to roll out policies? And so, in the labour space, that's certainly one of the trends that we're seeing. Then also in the human rights context, and as Preston had said – the discussion around whether or not the policy is reasonable or otherwise an employer requires reasonable accommodation – the discussions really focused on exemptions for medical reasons or for religious reasons. In terms of the medical reasons, you know, we've gotten guidance from the various provincial medical associations and colleges of medical professionals that's really defined what would be an appropriate medical exemption. Here in Alberta, just as one example, we've got guidance that, generally speaking, it's-- it's very narrow in terms of severe allergic reaction or adverse reactions, for example, inflammation of the heart. There doesn't really seem to be any supported grounds from the medical guidance around a permanent exemption, it's really a temporary exemption subject to review. On the religious exemptions, the guidance that has been emerging has really been around whether or not the prohibition against vaccination is fundamental to the belief system, or whether or not it's just somebody's personally held belief. I mean the way to think of that really, in sort of layperson’s terms is, it's not enough to simply be religious and to also have an individual objection to vaccination. It needs to be that the objection to vaccination is-- is part of your belief system. And so, that's really a very high level of overview in terms of the trends that we've been seeing from those two forms in terms of labour and human rights.

Preston Brasch  08:38
To add to that, the important thing to remember is that this is going to be a very context and fact specific analysis. So, adjudicators are going to look at the specific work environment, the specific risks that are present in those work environments. And so, what-- what is reasonable in one workplace, and at one point in time, may not be reasonable in another workplace, or even in that same workplace later down the road. For example, if the pandemic subsides or if the risk to employees isn't as great as it is now, vaccination policies that are reasonable today may eventually become unreasonable, even in the same work environment. 

Andrew McCoomb  09:17
Jeff, to catch on a point that you raised about collective agreements, I think it makes total sense to think that one of the first places you have to look in the labour context to get an understanding of the legality or appropriateness of a mandatory vaccination policy be the collective agreement. I mean, to what extent is a mandatory vaccination policy becoming an issue in collective bargaining when new agreements or old agreements are-- are reopened or new agreements are negotiated? Is that a hot button issue? Is that something that's in focus for union rep and management when they get together and negotiate a new agreement?

Jeff Landmann  09:52
Yeah, it's a really great question, Andrew. I mean, we don't have-- we don't have a lot of examples of that just yet. But, a few cases that we can think of where we've got employers and unions getting back to the table for collective bargaining, there is some of that discussion that's taking place. And also, obviously, as Preston mentioned, you know, one size doesn't fit all and so, different unions have different stances and some have taken public stances in favour of vaccination publicly. And so, that is an issue that has been emerging, obviously, but for the last year or two, obviously, wouldn't really have been front and centre, except in-- in those circumstances like in the health sector that we mentioned earlier.

Ailsa Bloomer  10:31
What about the disciplinary side of vaccination policies? So, if an employee actually refuses to get a vaccine altogether, what are some reasonable or unreasonable disciplinary actions that employers can take? 

Jeff Landmann  10:45
Yeah, a pretty significant trend has really been, and this is in both the union and non-union context, has been where the policy has been rolled out, there's usually been some period of notice. Sometimes those periods have been quite short, depending on the employer and depending on the necessity in the workplace. And other times the rollout has been longer over the course of a few weeks or even a few months. But failing compliance with the policy, what a lot of organizations have done is then either implemented an administrative leave or a suspension, presumably or ostensibly, to allow the employee to go out and comply with the policy and get vaccinated. Failing which, termination after that period in  time. We have seen some organizations that have just moved straight to termination, but a lot of organizations have put in place that administrative leave period or suspension period to allow for compliance. And then in terms of the termination, quite a few organizations have done that on a with-cause basis, so employee has failed to comply with the policy to the extent that they have exercised their personal choice not to be vaccinated, and there's a cost to it. That cost is for the employee to bear. In a few other cases, we have seen employers take a softer approach and do it on a without cause basis and negotiate a severance package. A very common trend has been that suspension period with the termination for cause following.

Preston Brasch  12:08
I think that it's interesting to see some of the signals that we're getting from policymakers as well. So recently, the federal health minister came out saying that provinces should consider implementing mandatory vaccinations. With employment insurance as well, you're seeing applicants may not be eligible for employment insurance if they've been terminated due to failure to comply with the vaccination policy. And so, you know, there's-- sometimes I think it's hard to think about the ways that these things interplay, but in some of the arbitration decisions that we've seen, they've talked about the fact that there's no legislative support for vaccination policies, in one instance, no support in the collective agreement. And so as those policies shift, I think that continues to add a bit more weight to the reasonableness for companies to implement these policies.

Jeff Landmann  13:00
And-- and to Preston’s point, there are a number of decisions already in the labour context, in particular, that have taken the pandemic context into consideration and found that those disciplinary measures are reasonable under the circumstances. And so there are a number of decisions that find the other way, but overall, the trend seems to be far greater support for an employer position. You know, ultimately, it comes down to what else is an employer supposed to do? You've got a wide variety of restrictions that are in place overall, in general, for the public, you've got a duty to maintain a safe workplace. Ultimately, if there is a situation where an employee has chosen not to become vaccinated, what else is an employer supposed to do at that point? Another issue that I'll just flag that's interesting, and we don't have any decisions on yet but I'm thinking about this in the non-unionized context, where an employer has terminated somebody for non-compliance with vaccine policy, what does that mean for their duty to mitigate, to go out and to find another job? You know, if you are refusing to become vaccinated, and you then have to go and look for another job where many employers are requiring, as a condition of employment that you'd be vaccinated, it raises a really interesting question around whether or not that employee can mitigate their losses, whether or not that amounts to a failure on their part to do it, and also just questions again the reasonableness of their decision not to do it in the first place. So it's certainly an argument that's live that I think we are potentially going to get some guidance on at some point in the not too distant future.

Ailsa Bloomer  14:37
Yeah, just to follow up on that point because I'm interested to hear you talk about notice periods and termination and what's reasonable in the context of the pandemic because, you know, another trend that we're-- we're seeing is, you know, what is a reasonable notice period to give an employee generally, in the event of a termination in the context of a pandemic or post-pandemic economy or labour market that is, of course, a totally different type of dynamic to what it would have been pre-March 2020 or even long before that. So, I mean, is it appropriate to suggest that an employer has to bear in mind the difficulties of this employee getting another job when they're determining what is a reasonable notice period for termination?

Jeff Landmann  15:22
Yeah, it's-- it's absolutely a relevant question to ask from the employer’s perspective. You know, overall what constitutes reasonable notice in a given situation is always fact dependent. And, you know, probably familiar with-- with the usual factors - age, length of service, nature of the position -- but then also the availability of comparable employment. And so, the pandemic context really puts a novel spin on that. At least as far as I'm aware, there's been cases that, you know, that have gone both ways on that issue. And it's really been a question of-- of the overall context and the facts. You know, on the one hand, it may be the situation that ultimately the decision to terminate was made before the pandemic, although at this point those cases are obviously two years in the past. And otherwise, the nature of the position is such that, despite the pandemic, there's still the availability of alternative work. You know, for example, in the case of somebody who works remotely or who has skills that really are transferable between industries, there's arguably less of a position to take, that the COVID context should be relevant. At the same time for somebody who was terminated in, you know, in the middle of a lockdown period and has the type of job that otherwise would have been potentially put on hold as a result of restrictions or otherwise might be difficult to replace, you know, that might arguably be a consideration that needs to be taken into account, both by the employer at the time of termination and what's being offered, but also by whatever adjudicator might ultimately hear-- might hear the case if a-- if a settlement isn't able to be obtained between the parties directly.

Andrew McCoomb  16:57
And to your earlier comments about mitigation as well, I imagine you-- this is also factual, and so context specific, but one of the challenges for somebody looking for work in a lockdown context, in the pandemic context is, getting out there, you know? Networking, getting interviews, getting meetings, making contact with people through traditional things that you think about-- about, you know, the path to get a good next job are so much harder to do in context and complicate the kind of analysis that you're talking about.

Jeff Landmann  17:26
Yeah, it's-- I mean, it's completely changed the way you might ordinarily go about looking for work. Obviously, for many people, an online search and online efforts would just naturally be a part of it. But to your point, Andrew, I mean, depending on the nature of work, depending on, you know, how important networking and informal discussion is to turning up that new role, that's obviously changed significantly over the last two years. It's an excellent point.

Ailsa Bloomer  17:53
So on the topic of remote working, obviously, you can-- many employers have gone to fully remote workplaces, us kind of included in that, I mean, some are planning to go fully remote kind of permanently, and some are looking towards more of a hybrid model. So, what are some key concerns and considerations that employers need to bear in mind when they are planning to move towards either a fully remote or hybrid work from home model?

Preston Brasch  18:20
Concerns that employers should bear in mind are, for one, confidentiality concerns from client’s perspective. So, in companies that work with sensitive data or information, suddenly you have employees who are at home and-- and potentially exposing that information to family members or friends, inadvertently. You also have potential occupational health and safety or workers’ compensation concerns. For example, in one case, out of Québec, there was an employee who logged off from their computer and then fell down the stairs during a break and was found to qualify for worker’s compensation. Ergonomics in a workplace setting at home, those can lead to long term issues. And then, if this continues for a long period of time, you may have people who become disabled or who may require accommodations for their work space. And whereas, traditionally, that would be accomplished in the physical workplace, now, employers will need to think about how do you-- how do you accommodate an employee who's working from home and may require some of those accommodations. And then, the other concern is if you have employees who are working in other jurisdictions, that raises all sorts of questions about which laws apply. If they're in a different country, there might be some tax implications, for example, that the company would have to think about. And then that also raises concerns with privacy legislation. So, for example, in Alberta, we have PIPA, which requires that personal information can't be transferred cross-border without prior and informed consent¹. And so if you have an employee, for example, working in another country who's dealing with personal information of customers or other employees on a regular basis, and that information is being transferred cross-border, that can lead to inadvertent violations or breaches of privacy legislation.

Ailsa Bloomer  20:14
I think it's really interesting that we're seeing is this expansion of the definition of the workspace and what constitutes the workspace. And I think, when you look at case law kind of pre-pandemic, it's almost more of a control-based definition. You know, the workspace is a place where the employer controls the activities. But obviously, that-- that doesn't work in this context anymore. And on that topic of how you define the workspace, there's also a cost element, right? Because who bears-- you mentioned, kind of, ergonomic and equipment that employees use now in a different workspace outside of the office at home. Who bears the cost, really, of improving the type of equipment that an employee is using if they're working from home? And it also-- the jurisdiction point kind of links to that as well because you mentioned that case about an employee falling down the stairs. Depending on where they are working, how do you determine the jurisdiction that governs a claim by an employee against an employer if they suffer an accident in the workspace, which is no longer the physical space where an employer exercises control of the activities?

Jeff Landmann  21:20
I mean, those are all great questions and Preston's overview, I think, really, you know, helps identify that. This is a series of near term and immediate issues, but then there's also wider implications. And it really takes in the entire life cycle around work. And you know, and so these questions around what constitutes the workplace is definitely one of the fundamental questions. You know, Ailsa, you'd mentioned earlier case law over the last few years that was decided around defining the workplace and thinking about, obviously, the-- the postal worker decision, in which it really dealt with whether or not people, you know, postal workers who are delivering the mail are in the workplace in the control of Canada Post when they're, you know, walking up your front lawn or up to your front gate. And I think what-- what this current pandemic raises is the question around if, in a more intentional way, people are going to be working from home or working remotely in some other third space on a regular basis as part of the terms of their employment, what are the issues and what are the obligations of an employer to ensure that that space meets certain regulations or certain standards? And I don't think we know yet because that's-- that's really just developing. You know, I'd be remiss if I didn't put in a plug for the firm in terms of we've recently launched in the last few weeks a transforming workplace initiative globally for our clients to help them work through these issues on an integrated basis, because it takes in a range of issues. You know, we've talked about which laws apply in which jurisdictions for employers, we've talked about occupational health and safety, human rights, privacy. The other questions that are going to be raised, obviously, here are questions around what space do employers even want to hold to work in? And on what basis are they requiring people to come in?

Andrew McCoomb  23:14
There's an interesting tension, Jeff and Preston, in what you guys are raising between the idea that a company might have obligations extending beyond the four corners of its office into its employees’ homes when they're working remotely. But also the fact that people are wondering when they ought to get people back into the office, and how those two issues interface, right? Well, we want to get you back as soon as possible and safely, but we're also facing this kind of indeterminate range of risk and liability, that is a little bit hard to decipher when you're at home and working for us and maybe we have some liability if you fall down the stairs on a break.

Jeff Landmann  23:54
Yeah, there's also two separate categories, if you will, which is, right now everybody's focused very much on the pandemic and risks related to health and safety arising from the pandemic. But, I think what we might see, as the pandemic eventually recedes in some way, shape or form is, there's still going to be all of these issues around people wanting to work remotely. And so employers and employees negotiating what that new world looks like, what are the terms and conditions of employment. But you know, I think to the example you raised you can think through, you know, an employer who now wants employees to work in a physical space somewhere on some basis, employees who have their own priorities in terms of what that looks like, how do you find the appropriate risk allocation between those two things? And then if you had somebody who was working in another jurisdiction in a third space, what laws govern, what's the workplace, who is responsible for setting up that space, ultimately, how do you deal with tax questions in any risk related to taxation? Depending on an organization that might be multinational, what are the immigration issues associated with that? So it really implicates a whole continuum of risks. And that's why, you know, from our perspective, looking at it on an integrated basis, in terms of mitigating that risk, but ultimately also finding the opportunity in that for an organization is, in a sense, the next frontier.

Ailsa Bloomer  25:25
And there is a discrimination element here, too, or at least a risk of discrimination. Because what about those employees who choose to work exclusively from home or-- or perhaps don't even have the choice, they for whatever reason they have to work exclusively from home now? What potential risks for discrimination are there?

Preston Brasch  25:45
Yeah, so some of the risks that-- that we might start-- start to see are that for some workplaces, those people who go into the office might start to, for example, get more opportunities for bigger projects, they may be seen by management more. And so, there might be this implicit bias towards those who are physically present and those individuals might be promoted at a faster rate. And, as we know, a lot of times the burden of homecare tends to fall to women, or there might be other issues that, you know, could arise from this discrepancy that we're seeing. And so, as employers move into this more permanent state of a hybrid work environment, for example, we might start to see some tension with pay equity laws, we might start to see in the-- in the years down the line, some issues where employers have inadvertently created a situation where there's inequality and inequity in the workplace. And so, I think employers really need to be cognizant of those concerns, those issues, and make sure they either developed policies or trainings or just kind of put a focus on that issue to try to avoid it as much as possible.

Jeff Landmann  26:59
One of the more immediate risks, also, is, obviously with people who have now been working from home, you know, one of the-- the immediate risks becomes, you know, has there really been an amendment to the employment contract also. So, you know, there's a great deal of commentary out there around ‘The Great Resignation’ and ultimately, flexibility seems to be the key driver for many employees and there's a great deal of benefit in it. I think also for employees and employers if-- if, you know, obviously used strategically in a given circumstance. But, to the extent that now there is some ambiguity around what are the terms and conditions of somebody's employment contract. Are you required to return to the office, when and under what conditions? You've got some risk around whether or not you've got a constructive dismissal, for example. And different employers have been dealing with it differently. I mean, many employers obviously have said, you know, you're going to be working remotely, but it's temporary. Other organizations have been a little bit less clear around people working from home and what the requirement will be in terms of coming back. And so what we might see again, as the pandemic starts to recede and-- and there's the ability to bring people back into a physical workspace is, challenges from employees around, well no, the terms and conditions of my employment now, my employment agreement really is that I get to work from home, or from some third space on some basis. And so, I think we're going to see some of those cases as we move forward, maybe through 2022 and into 2023. And those will be very interesting to watch. And again, I think the circumstances of each case will-- will be important to how they’re decided, but certainly near term issues around that particular issue.

Ailsa Bloomer  28:39
Yeah, it's an interesting question isn't it? The-- how employment contracts and like the terms of them could have changed over the past two years, just because of the changing context in which employees are working. I mean, you can see the difficulty that employers are facing here. I mean, how do they really pre-empt the liability risk of these constructive dismissal claims, when they simply just want to encourage or have more employees back in the office, particularly, in certain lines of work where it-- it literally is-- is more difficult to do the job remotely. It’s one thing to predict the risk of these constructive dismissal claims, but how do you actually prevent that future liability risk? Is there anything practically that employers can do?

Jeff Landmann  29:20
Yeah, I think from a practical perspective, you know, it's a question of being really clear in terms of any measures that are in place. Whether that's a communication to your employees or whether or not it's done by way of policy, I think where you're clear around this is a temporary measure, or it's a measure in place until a certain point in time at which point it will be reviewed depending on what-- what current public health authority guidance might be, for example, is one way to do it. I mean, certainly employers and employees can open up the contract and re-negotiate something if that's what they want to do and what's appropriate in their circumstances. That's probably more easily done where you're dealing with individuals or only a few people as opposed to a group. I think the wider question that a lot of organizations are looking at, though is, in their terms of their overall business strategy and culture and people strategy, what works for them? And I think if you look at that from the ground up and you say, ultimately, we want to attract and retain, obviously, top talent, what are those things that allow us to do that? What's the value proposition? You build your strategy off of that. If it makes sense flowing from that, that you need people in a physical workspace, whether full-time or on some other basis, then you can kind of design your policy and your negotiation strategy in terms of employment contracts around that. But very much a live issue and I think it's difficult to conceive of an organization that isn't in some way, shape or form grappling with those issues right now.

Preston Brasch  30:52
I think another point to build off of Jeff's point is flexibility is going to be an important thing for employers to-- to just keep in mind as they move forward. And to try to work with employees, especially when we have school closures and those situations that may come up. You may have a family member who has COVID or is sick and you need to take care of them. And so, communication is key, but then also being flexible as much as possible, within reason, to ensure that you're not imposing unnecessary burdens on your employees who are juggling a lot of competing demands, especially in this really challenging time that we're living through.

Andrew McCoomb  31:34
Yeah, that's good advice and-- and you have to imagine that to some extent, you know, the employment marketplace will correct for some of these things as-- as potential employees have greater and greater expectations of flexibility in looking for jobs. This question of flexibility in remote work is part of a trend, if-- if I may, of-- of people sort of revisiting their relationships with their employers on a-- on a grander scale with ‘The Great Resignation’, you know, in air quotes being the most extreme example of that. Can you guys give us a sense of what some of those bigger picture trends are, along with expectations about remote work and flexibility that you're seeing?

Jeff Landmann  32:16
Yeah, absolutely. I mean, one interesting discussion that has emerged over the course of the pandemic is, where you've got a remote workforce, is there any basis on which to change or adjust their pay? And so I think we may see some interesting disputes around attempted pay adjustments, wage adjustments, salary adjustments for people who have decided to move somewhere smaller and that might have a lower cost of living. My own personal view on it is, I think to your point Andrew, the market will ultimately correct for it. If you're paying for talent, you're paying for talent. And if that talent can be recruited from anywhere by any number of other organizations, ultimately, the market’s going to decide what the going rate is. 

Ailsa Bloomer  33:00
Going back to what we were talking about earlier, the definition of the workspace evolving and the changing concept of what is work. It’s no longer just about spending a fixed amount of face time in the office, but instead it’s-- it's output focused. It’s based on a set of deliverables for people where the boundaries between work and home life aren't as clear. And, so a key term that we're hearing in this respect is-- is this right to disconnect. So, can we talk a bit about an employee's right to disconnect from the office, and perhaps the tension between an employer exercising enough control to provide a safe workspace at home, but at the same time, an employee having a right to disconnect from work?

Jeff Landmann  33:47
Yeah, it's absolutely a significant trend and question that's emerging, and likely one that's going to have far reaching impacts for some time to come. And in a sense, it's-- it's really the, you know, kind of the counterpoint to, or the companion to, flexibility, you know, which is a key driver for many employees. And-- and obviously, the issue now becomes with the flexibility is, where are the boundaries? And the ability to be able to communicate with your co-workers, with clients, with customers at any point in time, especially when you're no longer located in the same place, and people have chosen to work at different points in time depending on what-- what their day is required, really raises a key question around, when can somebody not be available? When does somebody stop work? And what are the employer's rights and obligations to contact somebody or to otherwise engage with somebody who's performing work for them? So a big issue. Over the last couple of years, even pre-pandemic, there's been emerging trend in a number of jurisdictions in Europe that have passed right to disconnect legislation with varying parameters. And most recently, in the last two months, we've seen Ontario pass the first Canadian jurisdiction legislation with right to disconnect requirements, and the federal government is also considering whether or not there's legislation forthcoming in the federal sphere there.

Preston Brasch  35:10
I think one of the issues that the pandemic has really highlighted as well as is-- is mental health of employees and the workforce. And my view is that a lot of these questions in these-- these policy changes are being driven by the increasing awareness of the toll that this is all taking on employees. The right to disconnect, I think is-- is part of that. And we're also seeing a push for a four day work week in some jurisdictions, pilot programs across the world with a lot of interesting findings. Some people are-- are finding that-- that in-- workforces are sometimes more productive in those situations, employees are happier. And so, I think we might see more of that in the coming years as we have this philosophical question of what is work and why am I doing it and ‘The Great Resignation’ and all of these things coming together, I think we're going to see more push to create workplaces that promote mental health, that promote work life balance, and that really ensure employee wellness and well-being in a way that maybe we haven't seen in the past several years.

Jeff Landmann  36:24
And just on the right to disconnect. What will be interesting to see is, because we're still very much in the infancy of that type of regulation in Canada is, ultimately, what are the rules and regulations that are in place? Currently, Ontario's legislation requires employers to have a policy relating to the ability to disconnect. There's a great deal of work still to be done, obviously, to understand what that might look like. But then also in terms of mitigating risk and understanding what enforcement might look like: are those going to be statutory penalties? Is there possibility of-- of other civil or common law claims in relation to a breach of some-- some right to disconnect under the employment contract? You know, to your point Preston, are you going to see any sorts of claims around mental health if an employer is alleged to have breached those boundaries around an employee's ability to disconnect? And so, again it really is a new frontier in terms of what employers and organizations might be facing by way of risk, but also to navigate through in terms of what does the workplace look like.

Ailsa Bloomer  37:30
I do think it is interesting breaking down what this right to disconnect and the four day working week, and what these new concepts actually look like in practice. Because, you know, a theme in this conversation is it's not a one size fits all approach. Industries are different, business models are different. And, for example, if your business is a kind of client service business that actually-- it's integral to the operation of your business to have your employees responsive, law might be one of those industries, right? I mean, how does the right to disconnect really fit in to a business model where you do need employees to be available, because that's what the clients and the customers need? And also, a second point to that is, talking about penalties and liability risks and for violations of rights to disconnect, I mean, how is it going to work in practice? I mean, will it be possible to have your employees contract out of those requirements? Is that one strategy that certain employers might take, is to say, well yeah we have this policy, but we require you to kind of opt out of the regulations that provide for a right to disconnect. And how enforceable would that provision be?

Jeff Landmann  38:42
I think those are all great questions and I think there's, you know, there's the legal component, then there's the practical component. We don't know yet, in terms of Canadian law, what that might look like. As it stands now, we've really only got the Ontario legislation, which is, you know, really only under two months in terms of coming into force. And so, what might be the exclusions? So for example, are there certain professions and other job classes that are excluded, much like they would be under employment standards legislation? Presumably, there will be some consideration of that. Is there an ability to contract out? That will be interesting to see if that's something that's built in because, you know, on the one hand, you can imagine there are a variety of industries and sectors that just cannot practically operate without the ability to have some greater fluidity. Or is it something that you know, you can-- an employer would be able to apply for an exemption for? Or otherwise, you know, is the position going to be-- the law has been passed to ensure that employers respect those boundaries and guardrails and so contracting out might not be enforceable. So I think those are all-- all valid legal considerations. It's going to be very interesting to see how it unfolds and what other jurisdictions in Canada might do. And then the practical component really is, you know, from an organization standpoint, it's really down to are you able to attract and retain the talent that you need. And so, obviously, one of the approaches will be being upfront before hiring as to what the requirements of the job are. But also, I think organizations are going to have to think through, just from a people strategy perspective, if they are not flexible enough or seen by potential candidates as providing, you know, employee value proposition that-- that's sufficiently attractive, are they going to have issues? And so, I think it's a mix of the legal and the practical, you know, that-- that organizations are going to need assistance in terms of thinking through how those things balance out.

Ailsa Bloomer  40:41
And linked to this flexible working model, how do employers reasonably monitor what their employees are doing at home? Because every employer needs to be able to assess efficiency, right? And how long employees are spending on certain tasks. But is there presumably a privacy element of employers monitoring what their employees are doing when they're not in the office? And where is the line?

Preston Brasch  41:10
So I think that's also a question that is going to play out in the next few years. In one case, last year, there was an employee who was working from home and-- and she was subject to twice daily check ins. She would receive questions about her work from home routine, information from her social media was collected. And it was found that there were privacy breaches in that scenario based on a specific legislation and the specific circumstances of that complainant’s work. So, you know, I think, again, the question has to be context specific, it has to be something that employers have to consider about what makes an attractive workplace and-- and what kind of culture do they want to shape. Every employer must consider their specific situation and look at what's reasonable in their workplace.

Jeff Landmann  42:04
That's also where, I think going forward, a more intentional defining of the workplace or remote workers, you know, between an employer and an employee, is going to be important. Whether in the employment contract or by way of policies that are incorporated into the employment contract, a clear understanding of what the workplace is, and that may include times in which somebody is available and times in which they're not, just as one example, might be very helpful, because then in terms of assessing what's reasonable, you know, if-- if you've got an agreement, for example, between an employee and employer that they are going to be available online for-- for work-related discussion between, you know, 9 and 6 pm, then it's reasonable to contact the employee about work-related matters within that space of time. Checking on them outside of those hours, for example, in the evening or on the weekend or-- or any other time that it's sort of been defined as not being work time, might not be reasonable. And then, to Preston's point, too, it really depends on, you know, what is the monitoring? Is it you know, checking into tasks for a status update on a deliverable? Or is it surreptitious monitoring of keystroke logs on the, you know, on your laptop? Or-- or something else like that? Or is it you know, are you getting a call every hour on the hour to see if you're still sitting in front of your laptop? I mean, all of those things obviously matter in terms of-- of what's reasonable. And so, again, I think, just sort of that key point around employers and employees being more intentional around their understanding of what is the workplace, may be a trend that we see more of.

Ailsa Bloomer  43:38
Okay finally to-- to wrap up, what are the other developing trends that we will see, in the context of everything we talked about, going into 2022 and beyond? What-- what new things do you think are on the horizon? And what can employers do to mitigate the risks arising from them?

Jeff Landmann  43:55
Yeah, it's a really good question. I mean, there's so many-- there's so many new issues that are emerging. And, you know, one of the points we haven't touched on yet, but just thinking back to one of Andrew’s earlier comments, you know, around people being involved in-- in online activity to a greater extent in terms of job search. Obviously, employers are also utilizing technology for remote recruitment activity more so than ever before. And so, one of the issues we might see is, are there issues around bias and discrimination related to the use of technology or AI-assisted recruitment efforts? Which is a very interesting question in terms of, ordinarily sort of the traditional approach to advising employers against, you know, any practices that might be viewed as discriminatory during the recruitment process is based around human judgment and human interaction. Now the question becomes, what parameters do you need to think through with your organization or your third-party service provider if you're employing AI-assisted technology in recruitment? And, you know, you're dealing with people who may be far across the world that you're dealing with. And-- and so in terms of how you're screening those individuals and otherwise engaging with them, it does raise again sort of a new frontier in terms of considerations around human rights and discrimination and accommodation considerations.

Ailsa Bloomer  45:18
Preston, Jeff, thank you very much.

Preston Brasch  45:21
Thank you, Ailsa.

Jeff Landmann  45:22
Thank you so much.

Ailsa Bloomer  45:23
We hope you enjoyed this episode of Disputed. If you'd like to find out more about this topic, or how to contact our guests, please visit nortonrosefulbright.com/disputed. Also, if you have any questions, feedback, or topics that you'd like us to cover in a future episode, please do email us at disputed@nortonrosefulbright.com. And if you would like to hear more, please subscribe to Disputed on Apple Podcasts, Spotify or wherever you get your podcasts. 

1 - PIPA requires organizations to provide notice to individuals, and make certain information available to individuals upon request, if the individual’s personal information will be transferred to a service provider outside of Canada (such as third-party cloud-based servers, communications platforms for employees, payroll service providers, etc.). It does not, however, require prior and informed consent for all transfers of personal information cross-border, such as transfers of data internally within an organization or group of organizations. See sections 6 and 13 of PIPA for more details. 

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