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As businesses continue to look forward as they develop staffing plans to tackle 2023, they may also wish to take a quick look back at new policies that have now been added to the Employment Standards Act, 2000.

These include the right to disconnect legislation first unveiled in Ontario Bill 27 in December of 2021, and the electronic monitoring policy outlined in Bill 88, Working for Workers Act, 2022, and added to the ESA in April of last year.

The new policies – the subject of much discussion since they were first introduced - directly affect employers that employ 25 or more employees as of January 1 of any year and must be in place before March 1 of that year.

We reached out to Meagan Swan, an employment law expert at Pavey Law LLP in Cambridge, to offer insight on what these new policies mean for employers:

Q. What should employers be thinking about when it comes to timelines surrounding these ESA changes?

Meagan:  Employers were supposed to have these new policies in place last year, but as we know for some employers it takes a new year to really start thinking about what needs to be done in 2023. If an employer now has 25 employees, inclusive of all the employer’s business locations, as of Jan. 1, these policies are to be in place by March 1 of each year and provided to their employees within 30 days.

The government has been very reasonable about rolling out the new requirements and giving lots of notice in advance. As we start a new year, employers need to think, ‘do I now meet the employee threshold’ and ‘if I do, how do I create the right policy for my business’. 

The timelines each year do give employers a buffer to ensure they have any new policy reviewed before implementing them with employees.

Q. What are some of the steps employers should be taking regarding these policies if they haven’t already?

Meagan: The first step is to make sure they have the necessary policies in place by March 1 that work for their business. However, employers need to understand that these new policies do not give any new rights to employees. They are basically setting out what the expectations are when it comes to electronic monitoring and the right to disconnect. These policies are all about being transparent. 

An employer can tailor these policies to their business.  For the Right to Disconnect policy, an employer can outline the expectations for when an employee is required to review or respond to emails after hours or engage in other after-hours activities. 

An employer can also include exceptions in their policy to address urgent work that may arise. 

Communicating these expectations to employees is likely not new.  Rather, we are now requiring employers to have these expectations outlined in writing. I have seen some employers implement standard form policies – because there are lots of templates online – and then they end up restricting themselves more than necessary because many are very employee focused. 

These standard form policies don’t consider or address each employer’s specific business or its needs, so it’s important to obtain advice regarding the use of any template to see if it’s the right fit for your business. 

An employer should ensure their policy includes those exceptions and considerations needed for their own operations. Simply, an employer should consider obtaining professional assistance when creating their policies.

Q. What type of penalties could employers be facing surrounding lack of policy implementation?

Meagan: The government has not updated the regulations to include any specific penalties related to these new policies.  As of now, the standard complaint process to the Ministry of Labour is available to employees if an employer had not complied with its requirement to implement the policies.  This type of complaint will likely trigger a visit or communication from an ESA officer to investigate whether the employer is compliant.  If not, an Order requiring the employer to become compliant will likely be issued.

Q. Were there many changes to the Employment Standards Act in 2022 and did the pandemic play a role?

Meagan: COVID-19 has really pushed the government to implement new regulations through the ESA. For example, we had the Infectious Disease Emergency Leave (IDEL) regulation implemented to temporarily change the ESA rules related to reduction of hours, pay and layoffs.   We all know that the pandemic also required many employees to work remotely.  

Many of these employees began feeling the stresses of remote work and maintaining a balance between their home and work life. I believe the government was reacting to these pandemic related issues by implementing the requirement for employers to have Right to Disconnect and Electronic Monitoring policies in their workplace.

Many employers were hesitant at first and believed these polices would be onerous or would take away their ability to manage their own business.

But in reality, most of my clients have been able to implement policies that fit their business and it is now very transparent to employees what the expectations are for remote work and the monitoring of work.   

The number of employees returning to their workplaces has been steadily increasing since the start of the year, according to stats recently published in the Globe & Mail. However, as the months pass not all may be thrilled with the notion of going back to the office.

“We are hearing mixed reviews about returning to work and that has to do with both employee preference as well as the expectations that businesses put in place prior to the pandemic,” says Peninsula Canada Account Manager Victoria Vati, adding that if a business didn’t have a working from home policy in place prior to COVID-19 not many put one in place when staff began staying home. “This created confusion for staff who have been productively working from home for the last year or two, and now they are expected to return. Many of them feel as though it is not necessary to be there in-person and are pushing back.”

Victoria, an HR expert, says it’s imperative that workplaces ensure they have something in writing outlining what the expectation is for employees when it comes to returning to the workplace.

“It can be tricky to navigate this area completely,” she says, noting that some businesses have found it more lucrative to have employees work from home removing the financial need for physical office space. “Others may opt for a hybrid solution because they have the resources to accommodate and support both in-house and remote workers.”

When it comes to hybrid working, the JLL (Jones Lang LaSalle) Workforce Preferences Barometer report released in June notes that from among just over 4,000 office workers surveyed in 10 countries – including Canada - this type of work model was expected by 60% of respondents, with 55% already utilizing a hybrid approach.

The report also indicated that 73% of these office workers are going into the office at least once a week, an increase of 5% compared to March of 2021.

To ensure a hybrid model works, the report states that six out of 10 employees expect to be supported with technology and financial assistance for expenses linked to remote work and outlines the need for a ‘holistic’ approach to management since 25% of those surveyed felt isolated from colleagues, with 55% stating they missed the social interactions of the workplace.

“Many employees are mentally, physically and emotionally drained from the last two years,” says Victoria, adding that many employers are also feeling ‘burned out’ trying to juggle the day-to-day issues of operating a business amid financial worries and ongoing labour shortages. “The burnout is a little different for them, but they are facing it as well.”

She says not overworking their employees and themselves is very important.

“Employee retention right now is key for all employers. It is important for employers to provide support to their staff in as many ways as they possibly can. If an employee now suffers from anxiety due to the pandemic and would like to work from home on certain days, the employer has an expectation to (within reason) explore options to assist that employee. If remote working is not possible, then providing the employee with resources and guidance on where to turn to for help is also very important.”

Working for an employer that focuses on their health has become very important to many, as outlined in the report which states 59% of employees expect to work for a company that supports health and wellbeing and now rank them as the second biggest priority, after quality of life and before salary.

“It is important for employers to evaluate and understand the needs of the business and weigh the pros and cons of remote working,” advises Valerie, noting the recent implementation of Ontario’s ‘Right to Disconnect’ legislation is a great way to build transparency and trust in these changing work environments. “By enforcing this and educating staff on what their rights are, employers can create a culture of excellence and finding what works for both the business and staff.”

Visit Peninsula Canada for more information.

At a glance (Source: JLL Workforce Preferences Barometer)

• Hybrid work has reached an ‘optimal point’ – 60% of office workers want to work in hybrid style today and 55% are doing so already (These figures were about 63% and 50% a year ago).
• 55% of employees alternate between different places of work every week (+5% vs. March 2021).
• 73% of office workers are going to the office at least once a week (+5% vs. March 2021).  26% exclusively in the office.
• Six in 10 employees expect to be supported with technology and financial assistance for expenses linked to remote work. Less than four in 10 currently benefit from these types of initiatives.
• Enabling hybrid work shows your people that you are flexible and empathetic employer – This workstyle is especially appreciated by managers (75%), Gen Z (73%) Gen Y (69%) and caregivers (66%).
• Only 48% of the workforce believe that their company is a great place to work today.
• 38% would like to work in an office that is designed sustainably.
• 27% could leave their employer because they do not share the values promoted by their company.
• 59% of employees expect to work in a company that supports their health and wellbeing. This is now ranked as the second priority at work, after quality of life and before salary.

On April 11, 2022, Bill 88 – Ontario’s Working for Workers Act, 2022 – received Royal Assent and became law.  We reviewed this new legislative change with local legal experts, Hina Ghaus and Tushar Anandasagar, of Gowling WLG (Canada) LLP.

“We discussed the proposed legislation, with a specific focus on workplace electronic monitoring policies, in a previous blog post.  At that stage, the legislation was still in draft form.  For the final version, we wanted to provide the members with an up-to-date overview of what actually applies,” says Tushar.

Here are the key takeaways:

Employers: “Electronic Monitoring Policy”

Bill 88 introduced new provisions into the Employment Standards Act, 2000 (“ESA”), which require all employers who employ 25 or more employees to have a written policy in place on electronic monitoring of employees.

The electronic monitoring policy must include:

• information on whether the employer electronically monitors employees and if so,
• a description of how and in what circumstances the employer may electronically monitor employees,
• the purposes for which information obtained through electronic monitoring may be used by the employer;
• the date the policy was prepared and the date any changes were made to the policy; as well as
• any other information as may be prescribed by law in the future.

According to Hina, time is of the essence: “There are 3 key dates to keep in mind for the first year.  Employers who had 25 or more employees on January 1, 2022 must have this policy in place by October 11, 2022, and provide a written copy of the policy to existing employees by November 10, 2022.  In subsequent years, any employer who has 25 or more employees on January 1 of any year, must have a policy in place by March 1 of that year.”

“There are more requirements to consider regarding ongoing compliance, including when you will need to deliver a copy of the policy (once finalized) to your staff,” says Tushar.  “Employers must provide a written copy of the policy to all employees by no later than 30 days from the day the employer is required to have the policy in place, or for new employees, within 30 days of their joining date.”

There are additional wrinkles to consider for those businesses that utilize temporary help agency employees.  “For “assignment employees” (the ESA term for temporary help agency employees), they need to receive a copy of the policy within 24 hours of the start of the assignment, or within 30 days from the day the employer is required to have the policy in place, whichever is later,” says Hina.

During our last overview of the draft Bill 88, there was ongoing debate about this legislation and how it would be enforced.

According to Tushar, the “enforcement” mechanisms under the ESA are quite limited:  “Yes – the ESA contains several provisions which allow an employee to file a ‘complaint’ about this policy compliance requirement – but the grounds upon which the complaint can be based are very limited.  For instance, the ESA allows an employee to complain about whether a copy of the policy was provided in a timely manner, or not.”

Notably, there is no prohibition under the ESA which prevents an employer from engaging in electronic monitoring of one form or another. In fact, it is explicitly stated in the legislation that these requirements do not affect or limit an employer’s ability to use the information obtained through electronic monitoring of employees.

“As expected, there is nothing under Bill 88 which restricts an employer’s ability to monitor, or use the information obtained through monitoring, nor does it create a statutory “right to privacy” for employees,” says Hina. “There is no actual definition of ‘electronic monitoring’ under the legislation, although it is still early, and we could see clarification of this aspect of the law as we get closer to October 11, 2022.”

Tushar points out that the standard rules may not affect all employers the same way and pointed to the unique context of unionized workplaces.

“The ESA is only part of the picture. For many workplaces – notably unionized settings, a notable caveat applies where the parties to a collective agreement have negotiated language that permits or prohibits certain forms of electronic monitoring (in some cases referred to as a ‘surveillance’ clause),” he says.  “There is an extensive body of unionized case law that deals with the “reasonableness” of employee monitoring / surveillance – and that needs to be balanced with this new policy requirement.  We are actively assisting union sector employers with managing this issue.”

Finally, Hina notes that Bill 88 was just passed, and more is likely to be forthcoming from the province as we near October 11.

“We don’t have any codes of practice, guidelines or regulations (yet) on this new legislative requirement.  As with the ‘Disconnecting from Work’ policy compliance requirement, we may see the province publishing more on this issue over the coming months,” she says.

For the time being, Hina, Tushar and the rest of the team at Gowling WLG continue to diligently sift through the latest legislative changes. For further information, please feel free to contact Tushar at [email protected] and/or Hina at [email protected].

While working remotely has created new opportunities for many businesses since the start of the pandemic it has also put a spotlight on some concerns employers must now address as they continue to adapt to the seemingly relentless presence of COVID-19.

Among these is time theft, an issue which human resource experts say was already well known in workplaces but has become more apparent since employees began working at home.

Time theft occurs when an employee receives payment for time that is not spent doing their work, which could include conducting personal activities during work hours or taking long lunch breaks without telling their managers.

While there doesn’t appear to be any clear financial amount this type of activity costs Canadian employers, according to the accounting software site QuickBooks, in the U.S. time theft costs employers at least $11 billion annually.

“In certain scenarios, where trust was not there to begin with when employees were in the office and proper procedures were not in place, this remote element has just amplified the gaps between employers’ expectations and employees’ responsibilities,” says Kiljon Shukullari, a Certified Human Resources Leader at Peninsula Canada. 

His colleague, Peninsula Canada Account Manager Victoria Vati, agrees.

“For real time theft to occur the action must include an overtly fraudulent act, such as altering a timecard, punching in for each other, failing to record or falsely recording hours on an attendance management system,” she says, adding much of this type of time theft can be alleviated by software and refers to a system from BrightHR her company relies on.

This system, which does have a ‘check in and check out’ component, also includes an array of features to assist employees and employers regarding scheduling and accessing various documents. “It’s software that can assist in everyday HR related practices,” she says.

But there are a variety of aspects to consider when it comes to time theft, which requires setting out proper remote working policies.

“Other activities, such as surfing the internet too much, to running errands during the day can be alleviated by proper oversight from management and setting proper expectations in terms of production from employees,” says Victoria, adding after nearly two years into the pandemic many employers should now have these policies in place. “But it’s a matter of how you monitor that without micromanaging because that trust goes both ways.”

She says transparency is key when it comes to creating policies to manage a remote workforce.

“If that wasn’t there to begin with, now is a good opportunity to implement them,” says Victoria.

Kiljon agrees and says establishing those ‘core’ documents – including contracts and employee handbooks – form the basics of a good working relationship which could reduce the threat of time theft.

“It’s easier when an employer and employee start a relationship. It’s a lot harder when employees are already part of the business,” he says. “Existing employees is where we spend a lot of our attention to begin with because for a new employee and employer they are already starting on the same page.”

Kiljon says when it comes to introducing new work policies, communicating them well and acknowledging potential concerns from employees is a good approach. 

“The employer needs to be open to that two-way conversation with their employees and then the policy can be updated because at the end of the day, the employer does have the legal right to introduce any type of policies,” he says, adding some may be more straightforward, while others could appear harsh. 

Whatever the policy, Kiljon says being open to questions from employees and setting the right expectations and clarifying what the outcomes are for non-compliance can go a long way.

“Those are key things,” he says.

Trust, says Victoria, is at the core of the employment relationship.

“A company should start with the position of trusting their people,” she says. “It’s all about fairness and consistency in how employers treat their employees.”

To help the situation, both say providing the necessary supports to employees who may be struggling working remotely is a great way to build a better and more productive working relationship. This could include helping them setup a backdrop for virtual meetings, or ‘recreating’ their office space at home by providing them with more equipment, such as a second computer screen.

“Employers need to be aware of the contexts their employees are working in at home,” says Kiljon, adding encouraging employees to communicate via video rather than an email or text is a good way to maintain a more personal approach to contact. “Also, congratulate them for their achievements and help them through their difficulties and always keep an open-door policy. These are things that will help.”

For employers looking to introduce or revamp work policies, Victoria recommends using the services of an expert will help them in the long run.

“Employers are expected to be HR and health and safety and labour law experts, and it’s next to impossible,” she says. “If you can get free advice that’s great, but ultimately if you want to make sure your business is 100% protected it’s best to speak with a professional, even if It’s a consultation.”

For more information on Peninsula, visit https://peninsulacanada.com

Tips to prevent time theft: 

1. Install time and attendance software 
2. Keep open lines of communication between all staff
3. Improve accountability at work
4. Be understanding
5. Do away with paperwork (handwritten timesheets) 

A few facts from Benefit Canada:

• A study by Aternity Inc. found overall productive decreased 14% between Feb. 3 to July 9, 2020, as high levels of remote work were maintained due to the pandemic. 
• According to the 2021 Benefits Canada Health Survey of approximately 1,000 workers, 66% said they feel less connected to their co-workers and employers since switching to a remote system.
• 73% of respondents said they weren’t satisfied with their jobs, while 74% said they have a high level of stress. 

A ‘ding’ indicating a new text or email has arrived on your cellphone or laptop is often too tempting to ignore for most people, especially when it’s work-related and even if it’s outside of what’s considered regular work hours.

The creation of the Working for Workers Act, 2021 aims to change this by requiring employers to develop a policy related to the right for employees to ‘disconnect’ after work, as well outlines prohibition – with a few exceptions - on non-compete agreements. 

“Ultimately, it’s about mental health and making sure people can have that perspective on it and companies are supporting those decisions,” says Frank Newman, who operates Cambridge-based Newman Human Resources Consulting. “The end result is a more productive work environment, but we’ve got to change our habits because we’ve gotten so used to emailing or texting late at night.”

The new Act requires that as of Jan. 1 of any year, employers with 25 or more employees must have a written policy in place before March 1 of that year with respect to having workers ‘disconnect’ from their jobs. As it stands, employers will need to have a policy prepared by June 2 of this year.

“Most will start from scratch and there will be quite a few policies that can be impacted by this,” says Frank, adding employers could begin by examining any current hours of work, or overtime policies they may already have in place.

However, he says the process doesn’t have to be a daunting task and should begin with some clear discussion between employers and their employees around expectations, on both sides.

“This is a great opportunity to really have an open dialogue with employees and start working on the question of what can you do to increase their performance during office hours, and how do they feel about disengaging,” says Frank, noting it’s hard, especially for those working at home, from keeping close watch on their cellphones or tablets.  “This is not a ‘do or die’ policy that deals with laying off people or increasing wages. This is basically looking at the working environment to see if it’s productive and are employees happy and feeling comfortable after shutting down.”

He says many organizations are still trying to find their ‘groove’ in terms of hybrid working arrangements since the start of the COVID-19 pandemic, noting there are simple steps they can take to improve productivity when it comes to managing a remote workforce.

“For example, look at the way we structure emails. Do you always put ‘urgent’ in the subject line? Do you copy all your co-workers in every email?,” he asks, adding some workplaces have created times during the week where no meetings are scheduled to give employees the chance to work, or encourages them to take breaks. “There is a whole bunch of productivity protocols that companies can look at as part of this. But companies need to be creative with this, otherwise people are just going to fall back into old habits.”

For starters, Franks says it’s imperative that companies define what are ‘regular’ working hours and the expectations they have for employees surrounding them. 

“But more importantly, it’s about how you define what those expectations are after working hours and during emergencies,” he says, adding this is especially important for companies with offices located in other time zones. “You also have to think about how you contact with people when they are on sick or maternity leaves, again, respecting their right to disengage.”

Also, Franks says companies must define if this policy will apply to everyone.

“For example, if you’re vice-president of finance you may not be able to disengage during off hours,” he says. “But obviously, the intent of this is to turn everyone off if you can which is very difficult in this day and age.”

In terms of setting up a policy, Frank says it should start with a shift at the management level explaining leaders of the company may have to try and curb themselves from sending emails or messages after hours.

“Even if they’re texting or sending emails among themselves at those times, that’s going to filter through the organization,” he says.

But ‘disengaging’ is only one aspect of the Act. Another is the banning of non-compete agreements that prevent employees from exploring other opportunities, apart from ‘C-Suite’ executives.

“This is a good thing,” says Frank. “But it could be a little challenging for companies because they could lose some of their talent to competitors.”

However, he says having a comprehensive policy in place could also become a valuable tool to entice new talent, a bonus considering the ongoing labour shortages in many sectors. 

“It’s also a positive way to be able to attract employees because many are looking for more time off and more flexibility,” he says. “Companies can develop these policies as a positive way to say this is our values and this is our work culture. There’s really no risk to this.”

However, Frank admits it remains yet to be seen how the Province can enforce this Act, noting it will probably fall under governance of Employment Standards.

“This is going to be a challenge,” he says. “Trying to get the government to respond at the best of times can be a challenge.”

For more, visit: https://bit.ly/3qtsMfP

 Working for Workers Act at a glance:

• Require employers with 25 or more employees to have a written policy about employees disconnecting from their job at the end of the workday to help employees spend more time with their families. 
• Ban the use of non-compete agreements that prevent people from exploring other work opportunities in order to make it easier for workers to advance in their careers. Help remove barriers, such as Canadian experience requirements, for internationally trained individuals to get licenced in a regulated profession and get access to jobs that match their qualifications and skills. 
• Require recruiters and temporary help agencies to have a licence to operate in the province to help protect vulnerable employees from being exploited. 
• Require business owners to allow delivery workers to use a company’s washroom if they are delivering or picking up items. This supports the delivery drivers, couriers and truck drivers who have kept our essential supplies and economy going throughout the pandemic. 
• Allow surpluses in the Workplace Safety and Insurance Board’s Insurance Fund to be distributed over certain levels to businesses, helping them cope with the impacts of COVID-19.  

The decision by Premier Doug Ford’s government to extend its COVID-19 sick days program has pushed the issue of paid leave back into the spotlight for many employers and their employees.

The province announced Dec. 7 that it’s COVID-19 Worker Income Protection Benefit, which require employers to provide up to three paid days off related to the pandemic and was to expire at the end of December, will continue until July 31.

But what happens after that date remains unclear, especially as the pandemic continues to drag on.

“In terms of what we do going forward, this is a question that deserves debate and discussion because on the one hand, there is a sound rationale to having a program like this in place, but the government can’t be footing the bill for everyone endlessly,” says Daniel Safayeni, Vice-President of Policy for the Ontario Chamber of Commerce. “And on the other side, small businesses have been disproportionately impacted by the crisis and the cost of doing business has gone up.”

He says it is worth noting the government budgeted $1 billion for the provincial program and that less than one-tenth – approximately 10% - has been used since it was launched last April. Under the program, employees receive a maximum of $200 per day, with the province reimbursing the employer. To date, employers have submitted more than $80 million in wages for sick pay claims for more than 235,000 workers.

“What we’ve seen in the numbers, on average by those who’ve used it, is no more than two sick days,” says Daniel.

The idea of transitioning this support to a more permanent sick day program of 10 days is something the Ontario Federation of Labour has been lobbying the provincial government to implement. In fact, a poll conducted by Envrionics Research in the last two weeks of November of 2021 indicated that 80% of the 1,210 respondents supported the Federation’s call for 10 permanent employer-paid sick days. 

“It is far past time for Ford’s Conservative government to finally do the right thing and introduce permanent, adequate, employer-paid sick leave and Ontarians overwhelmingly agree,” said Patty Coates, Ontario Federation of Labour President, in a Dec. 9 post on the group’s website. “The Worker Income Protection Benefit is temporary and inadequate. While Ontarians face the rise of a new COVID-19 variant and flu season, we urgently need this common-sense health measure to keep ourselves and our communities safe.”

But rising inflation and budgetary constraints faced by many businesses at this time would make implementing such a permanent program difficult, which is why Daniel says careful discussion is imperative.

“Ideally, there is a balance that can be struck in some future version of this program (Worker Income Protection Benefit) in which the government can still support these three sick days, particularly for smaller businesses that are in-person and don’t have the remote capabilities or don’t necessarily have the resources to fund an additional benefit like this,” he says, adding many larger businesses may already have sick day policies in place. “Perhaps there is some evolution that can occur for those that don’t, and that expense is eventually transitioned over to the employer. But this stuff needs to be done in consultation with the business community and the timelines need to match the economic backdrop.”

Daniel says implementing a more permanent paid sick leave program should not be part of any election promises.

“Right now, it’s getting mixed up within the context of an election,” he says. “It also has to be thought of within a broader package of benefits and compensation that employers are providing.”

And while the pandemic continues, especially for workplaces like smaller manufacturers, Daniel says the need to extend this program is important.

“The other backdrop to this is there is a war on talent and labour shortages and you’re seeing businesses trying to compete in the benefits they offer and to try and be an attractive place to work,” he says, adding providing a safe workplace for employees should remain the top priority right now, especially in the ‘essential’ sectors of retail, administration, and manufacturing. “It’s in no one’s best interest for a business to be in a situation in which they are risking the health and safety of their employees and by extension, the continuity of their business operation.”

Daniel says now is the time to investigate where this paid sick day benefit program can lead.

“It was wise of the government to extend this program, but let’s use the time we have between now and July to determine what the next step for this will look like,” he says. “As a Chamber network, we need to continue to do more work to understand where our members are at this time and what avenues for us going forward could be used to have a productive solution in place.”

The pandemic has created new opportunities for many workplaces.

The terms ‘hybrid’ and ‘flexible’ have become commonplace as companies and businesses formulate plans for their staff to return to a work environment that’s going to be far different than the one many left when the pandemic first struck in March of last year.

But that return won’t come without its challenges.

“We’re seeing a ton of anxiety out there right now as more and more employers start thinking of having people come back to the office,” says Frank Newman, who operates Newman HR. 

A survey conducted by KMPG Canada in the spring as vaccinations began to ramp up showed that 81% of Canadian workers were worried their employers and managers were not equipped to handle a return to work properly, and nearly two thirds of those surveyed wanted to go back to their workplaces but COVID-19 remained their core reason for reluctance. In fact, 68% said that working alongside colleagues who may be sick or asymptomatic was a top concern.

“People have gotten very comfortable and generally quite productive working at home,” says Frank, adding the comforts of home and no commuting have become big draws for many. “I would say people are 90% to 95% as productive as they were working in the office. But clearly, we’re missing some of those creative exchange of ideas that come from sitting next to someone or from random conversations.”

In effort to quell the concerns of returning employees, he has been recommending to clients they create an open dialogue with their team to identify their worries or fears.

“It’s a little like when an employee returns from a maternity or parental leave. We just assume everything is the same but what we don’t realize is that they have undergone a bit of profound psychological change and I think we kind of had that experience working at home,” says Frank. “Companies have to try and understand what might have happened in employees’ lives while they were away. Some of us may have had loss and some of us may have had catastrophic things happen.”

Therefore, he says employers need to create or enhance their Employee Assistance Plans, especially around access to counselling, financial or legal supports – not just health, RRSPs and dental benefits. 

“I think more companies have recognized how stressed people have been,” says Frank, noting some employees may be reluctant to access these supports fearing word may spread in the workplace. “These programs are run with the highest sense of ethics in place in terms that nothing gets shared, even with your HR department. There shouldn’t be any fear about utilizing an EAP program if you have one.”

As well, he says vaccination policies are a huge concern and appear to be ‘all over the map’ in some workplaces and stressed that whatever stance a company takes regarding its own policy, it should be clearly defined for the employees.

“You want to make sure you’re talking about why you’re doing a policy, regardless of what it is because people need to know,” says Frank. “We want to keep people feeling safe at work.”

He says optimism appears high right now regarding bringing workers back and expects to see even more people return starting in January.

“I’ve got clients in virtually every sector. And the most challenging time right now is in the restaurant and food services industry,” says Frank, explaining vaccination passports and the fact fewer people have been dining out are continuing factors hitting this industry hard.

Also, he says workplaces with an office and a production/manufacturing component also may see the natural divide between the two widen since the office workers likely were allowed to work from home during the pandemic.

“Companies have to be thoughtful about how they show appreciation to those people who’ve been at the workplace every day,” he says, adding celebrating the return of employees in a positive way would also be beneficial. “I like the idea of giving something tangible, like a gift card perhaps.”

Frank says connections must be cultivated as people return to their offices.

“What we’ve learned from this whole process is that finding ways to connect with people is so important,” he says.

For more information, visit Newman Human Resources or contact Frank Newman at 519.362.8352.

Things for employers to consider as outlined by the Harvard Business Review:

Do:  

• Ask - anonymously, if necessary – how people are feeling about returning to the office so you can respond directly to their concerns

• Allow people to experiment with different ways of working so the shift to in-person or hybrid work doesn’t feel sudden. 

• Continue to be compassionate — to your team members, and to yourself.

Don’t:  

• Assume people are going to tell you that they’re feeling anxious

• Neglect to make clear why in-person or hybrid work is beneficial to employees (not just to the company).

• Make promises you can’t keep, such as assuring people their careers won’t be impacted by working from home or that they can do so indefinitely.

The concept of remote working was something many employers never entertained, or wanted to entertain, before the world changed in March of last year. 

“A lot of people didn’t think working from home would work so there was a huge amount of skepticism as people went into this,” says Frank Newman, owner of Cambridge-based Newman Human Resources Consulting. “People were pretty suspicious.” 

However, he says the fact what some considered to be an ‘experiment’ is working out so well has resulted in new issues. 

“People may be reluctant to go back to the way things were so it’s having an impact on companies, and even an impact on home sales as buyers ensure their house has a home office.” 

As well, after more than a year operating in this new reality many employers may have productivity concerns when it comes to managing a remote workforce and continue to look for ways to ensure staff is performing at their optimum best. 

“What I have told my clients first of all is that people are not going to be 100% as effective working from home. They are going to be subjected to certain amounts of distractions, or disruptions,” says Frank, adding 95% effectiveness is a more likely figure. 

He says there are ways companies can help employees achieve their goals, without monitoring emails or logins or using various types of tracking technology. 

“If companies are trying to manage their employees’ work each minute of the day that’s not going to be very successful,” says Frank. 

Instead, he recommends setting out clear expectations in an agreement. 

“Do they have clear performance expectations and what are they accountable for delivering on a daily, weekly or monthly basis,” he says. “For example, if an employee is working from home does the manager expect a response to emails within an hour or 24 hours? It’s important to create some service level of expectations so people can gauge their performance and also managers can ensure employees are accountable for those standards.” 

Regular communication is very important says Frank, noting that ‘blasting’ employees with emails is not the answer.  

“For managers, to worry about whether employees are checking their emails is not necessary,” he says, adding platforms such as Microsoft Teams or Slack are great tools to cultivate engagement. 

“This is really the time to make sure you’re connecting with your employees if you’re worried about productivity,” he says. “That (productivity) will be the first thing to go if people are not engaging. They’re going to ‘check out’.” 

Lack of engagement is one of many warning signs experts say can indicate an employee working remotely could be struggling. Others can include unusual errors, poor work quality, missed deadlines, increased sick days, or being withdrawn during team meetings, in some cases keeping their cameras turned off.  

“They may stop volunteering for things and that’s a key sign, especially if you have someone who was always keen in the past to put up their hand and volunteer,” says Frank, adding  

the occasional one-on-one meeting can be very beneficial for both parties as long as it’s not conducted in an intrusive way.  

“Make sure you’re checking in on your employees to see how they’re doing, not just from a work point of view, but to find out how are things for them at home. Are they struggling trying to work with their kids at home?” 

He says this could lead to talks about mental health – which should be documented on the part of the employer – and possible supports or tools that could increase their productivity, such as an additional monitor or a new office chair. 

Keeping a company’s work culture thriving is also very important which is why Frank says many of his clients are utilizing a variety of ways to ensure employees stay connected. 

“I have one client that holds a virtual reality ‘drink’ every week for its employees,” he says, adding another client hosted a very moving online memorial service to celebrate the life of an employee who had passed away from an illness. 

“I’ve also been encouraging my clients to provide a physical appreciation for their employees,” says Frank, noting a coffee mug or a gift card can go a long way to keeping the lines of communication open. “And include the spouse because for many of us, the spouse is the one who is seeing all the work that we do.” 

He says many employees working remotely may now be ‘re-evaluating’ their career choice, which could spell trouble for some companies. 

“People will remember how companies behaved during this time and if you’re not taking the time to connect, there’s going to be a price to pay at some point,” he says. “Once the pandemic ends, I suspect we’re going to see a huge spike in people who are discontented with their jobs and say now is the time to move on.” 

For information, visit https://newmanhumanresources.com 

Working from home has become the norm for thousands of people since the start of the pandemic and many may wish to continue that practice.

However, the question of work location is just one of many items on a growing list of work-related issues that are likely to capture additional attention as more of us are vaccinated lowering the risk of the spread of COVID-19, allowing employers to begin to try to get back to “normal”.

“A key issue right now is for employers to review their employment contracts and policies,” urges Melissa Roth, a human resources, labour and employment lawyer at Pavey Law LLP in Cambridge. “It’s a very worthwhile investment.”

She says changes in general, with respect to termination provisions, as well as changes brought about since the initial shutdown in March 2020 caused by the COVID-19 pandemic, have made it imperative for employers to revisit their employment contracts and policies.

“At first we didn’t have any plans for this in terms of a structure for what was going to happen when businesses were closed,” she says, referring to the laws that were in place in accordance with the Employment Standards Act, 2000 (ESA) at the time of the first lockdown. “At the end of the day, when you lay off someone you are terminating their position if you do not recall them back to work after a specific period of time.”

She says the introduction of the deemed Infectious Disease Emergency Leave (IDEL) changed that from an ESA perspective, allowing those temporarily laid off under the ESA due to COVID-19 to be classified as being on a job protected leave.

“But if you didn’t have that right reserved in your employment contract, then this is still known as a constructive dismissal in the courts,” says Melissa, noting many employers are now facing potential legal claims from employees.

As well, the continued ability to work from home, like other aspects of the working relationship, is a function of the individual’s employment contract, job duties and other factors.

“You, as an employee might be excited about continuing to work from home and may want to keep doing that but if the employer tells you that you have to come back to work, you likely have to come back,” she says, adding employees, under certain circumstances, may be able to request to continue working remotely based on protected grounds under the Human Rights Code. These requests could centre around disabilities or family issues, such as children being too young to be left at home alone since changes to the Education Act have permitted parents to keep their children out of schools.

“There are a lot of factors that play a role in a request to stay home and continue to work from home,” says Melissa, adding if there are no human rights grounds to remain home and it was not written into the contract, there is likely an expected obligation that an employee will return to the workplace. “There’s a lot to consider and the answer is never a black and white issue.”

She says some employers already had telecommuting policies in their work contracts because working remotely was already part of their regular business, but that even these policies may need updating.

“As an employer, you are going to have to consider if it is essential for your employee working at home to be available during core hours or whether they can make up their time throughout the day,” says Melissa. “In turn, the employee will have to know what the expectations are when working from home.”

As well, she says the Occupational Health and Safety Act and WSIB concerns have to be taken into consideration when assessing the possibilities of continuing to work from home.

“A person may be working from home and an employer still has certain obligations to take every precaution that’s reasonable under the circumstances for the protection of their worker,” says Melissa. “All of these issues have to be taken into consideration.”

She also encourages these considerations be included in the contracts of new hires and in employment policies.

Melissa mentioned that employers should turn their minds to other issues such as rapid testing and vaccination policies as they pertain to the workplace.

“You should have this in writing,” says Melissa, noting businesses should provide their employees with clear messaging and embrace this time as the opportunity to update their policies and contracts. “I’m just speculating, but the next pandemic is likely not going to take 100 years so let’s be prepared for this to happen.”

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