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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.   

 

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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. 
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A shortage of rapid antigen screening kits threatens to hamper the ability of local Chambers to assist Waterloo Region businesses stay safe over the next few weeks, says Cambridge Chamber of Commerce President and CEO Greg Durocher.

 

Since the start of April, the Cambridge and Greater Kitchener Waterloo Chambers have been working with Health Canada and the Province to provide free self-screening kits to small and medium-sized businesses throughout our Region.

 

Since that time, more than 700,000 of the kits have been distributed, not to just to Chamber members but all SMEs with less than 150 employees. The goal of the program was to identify asymptomatic or presymptomatic individuals from spreading COVID-19 in the workplace, at home and around the community.

 

“Up until December, everything was running very smoothly, and people were ordering kits and they were keeping workplaces safe,” says Greg, noting a provincewide shortage has altered that at very critical time for businesses. “There are a number of workplaces that are in a very vulnerable situation that are essential and it’s very important they screen employees every couple of days. You can’t have an essential business close their doors for 14 days.”

 

The Chamber initiative, which began as a pilot program and was quickly implemented provincewide by other Chambers through the Ontario Chamber of Commerce network, is waiting on a delivery of approximately 150,000 of the kits to fulfill orders placed by businesses through its Chambercheck.ca portal.

 

“But the fact of the matter is we have at least 1,600 businesses who are now waiting in the cue to get their kits and we don’t have any,” says Greg, noting that leaves approximately 70,000 employees in Waterloo Region without access to rapid screening until at least mid-January.

 

“Even when we receive our order that still won’t be enough because to test that many employees we need at least 280,000 kits,” he says, explaining proper screening requirements call for employees to use the kits at least twice a week.

 

The Chamber’s last order of 50,000 kits – a week’s supply - arrived Dec. 6 and was quickly allocated to businesses or re-allocated to other businesses (including restaurants) if they were not picked up. 

 

“We know there are many workplaces that have to have them,” says Greg, adding a decision by the Province to distribute a single box of screening kits containing five tests to students over the Christmas break may not have been the best method. “It’s a great idea, but not enough has been handed out. Five tests aren’t enough and there isn’t a real strategy attached for their use and to even retain some tests for going back to school. Just handing them out is no real strategy.”

 

He says distributing through workplaces has been a great way to reach more people. 

 

“We’ve always said from the very beginning of this to the Province that about 63% of Ontarians are in workplaces so if you make rapid screening kits available for employees you have the potential to reach 63% of the population,” says Greg, noting not all employees may wish to take part in the screening program unless it was mandated. 

 

He says it would have proven cheaper for the Province to distribute more screening kits to workplaces and even curtail the resale of the kits for exorbitant amounts online.

 

“The BESTWR (Business and Economic Support Team of Waterloo Region), along with the Chambers, started encouraging the Province to do rapid screening in May of 2020 and it took them almost a year to get out and going because we stepped up to the plate and said we would do the pilot program,” says Greg. “We literally wrote the playbook so they could pass it on.”

 

He says running the free screening program through the Chambers has also ensured all the necessary safety protocols are followed.

 

“We have all the safeguards in place to make sure these kits are being used correctly and continue to be accessible to answer any questions if businesses have had a problem,” says Greg. “It really has been a seamless program, but now we’ve seen an unnecessary pause during the most critical time for these businesses.”

 

For information, visit Chambercheck.ca

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Having employees return to the workplace will be a welcomed sign for many as an indication the worst days of the pandemic may finally be behind us.

 

But that return will be accompanied by questions and concerns as businesses and their staff learn to navigate what is likely going to be a very different work environment – both professionally and personally - compared to the one they left in March 2020.

 

“There are a lot of employers and HR people who right now are putting together some policies and codes of conduct for their workplace,” says Julie Blais Comeau, Chief Etiquette Officer at Etiquettejulie.com, explaining that these guidelines will be imperative for employees. “At first, generally speaking, we’re all going to follow our employers’ guidelines.”

 

But outside of these guidelines there will be the personal interactions with both co-workers and clients, many of whom returning employees may not have seen in-person since the start of the pandemic.

 

In terms of these interactions, various safety protocols we’ve all lived with for the past year and half – wearing masks and staying socially distanced – will likely remain at the forefront of our minds when we once again are face-to-face with others.

 

“Before asking any questions or displaying certain behaviours, you’re going to think back to your relationship with that person from before,” says Julie, suggesting approaching from the perspective of ‘friend or foe’. “You’re going to want to switch that lens 180 degrees and approach them from an empathic perspective. How do you feel that person perceives you?”

She recommends letting a person’s body language guide you, noting that 55% of communication is based on body language and that tone and pitch of the voice make up the remainder.

 

“Make sure that whatever you’re going to do or say will be perceived in a positive manner,” says Julie. “There will be nothing wrong with saying, ‘I’m so glad to see you again – how are you?’. And then wait and observe the visual cues.”

 

She says taking the cues from the person you’re interacting with is very important, noting that in some cultures personal health issues are not something that is shared, while others may prefer to keep their mental and physical health status private.

 

“If you’re going to ask questions then ask yourself why are you asking? Are you generally concerned or being cautious for yourself or is it just curiosity?” says Julie, adding being ‘nosy’ is not a valid reason. “What is the context of why I’m asking and what could be the consequences if it’s not interpreted well?”

When it comes to sharing one’s vaccination status, she says it’s OK to volunteer your status if you are comfortable with that person but that others may not feel the same.

 

“Some people don’t want to say because they’re afraid of confrontation and afraid the other person is going to lobby for them to get vaccinated,” says Julie, noting there are many reasons why a person may choose not to be vaccinated. “I think we have to be very benevolent and respectful for the people who don’t want to.”

 

Questions surrounding vaccinations and how employers must handle this issue is a key concern right now says Victoria Vati, Account Manager at Peninsula Canada. The company provides a variety of services pertaining to human resources and health and safety.

 

“Each individual workplace has a number of staff all of whom will have a different level of understanding and different opinions,” says Victoria, noting ensuring staff remains safe but also feels secure are top priorities when it comes to implementing workplace guidelines and policies.

 

She says her company has been providing the latest information regarding the vaccines to ensure its employees have the education they need to make informed choices. Also, she says some companies may even provide a day off for employees to get their vaccinations.

 

“Finding a balance that works not only for your industry but for your staff will be the most important thing,” she says. “Not every business has the luxury of having employees work from home. You need to find a good balance that meets health and safety requirements but doesn’t infringe on anyone’s human rights.”

 

She says screening and contact tracing will continue to be very important, as well providing things such as hand sanitizer and even wearing masks.

 

“You can still argue right now masks are mandatory and must be worn in common areas, especially when social distancing rules cannot be applied,” says Victoria, adding businesses can insist masks continue to be worn even if they are no longer mandatory in public places.

 

She says ensuring employees are aware of the health and safety policies that are in place is vital through signage and written communications.

 

“If you don’t have it in writing, it doesn’t really exist,” says Victoria, referring to guidelines and polices.

 

She says the pandemic may have provided businesses with a unique opportunity.

 

“Let’s try to come out of this with new ideas and a bright fresh start; it’s kind of having hit the reset button,” says Victoria.

 

Julie agrees and says etiquette is also constantly evolving.

 

“We observe with this great microscope what is commonly agreed upon as to what is acceptable for a large group of us versus another,” she says, referring to etiquette experts like herself. “Society dictates what is appropriate.”

 

For more information, please visit Peninsula Canada or Etiquettejulie.com.

 

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