Legal considerations for employers as pandemic drags on
With the coronavirus pandemic set as the backdrop for the foreseeable future, employers are getting mixed signals about the best way to function safely and effectively.
“You have to look at this from the perspective of [having] the federal government saying, ‘Here’s what we think you should do,’” says Kathleen Chevalier, partner at Stikeman Elliott LLP. “You’ve got each provincial government coming out with guidelines, reopening plans, regulations for employers. Then you’ve got the public health authorities. And it would be a gross oversimplification to say all of those are in step with each other.”
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For organizations where all or the majority of employees can do their jobs from home, many are pulling together policies and procedures to ensure the parameters of remote work are clear, she says. “These are more about setting the groundwork and laying out expectations for people while they’re working from home. Obviously, the expectation is you’re still working, you’re still being productive, still being efficient. You’re still expected to request and track vacation time. You’re still requested to let us know if you’re taking sick time. More important than ever is the appropriate tracking and reporting of overtime, because the lines are blurring and people are working at odd hours.”
Chevalier also urges employers to remember there’s a possibility that a person’s home environment may not be safe, an aspect that often gets overlooked in remote working arrangements.
Further, she suggests that employers consider whether certain aspects of a job may be more difficult when working from home and lay out agreements and procedures for employees to follow, such as the handling of confidential information. “I can tell you I haven’t printed a single thing since I started working from home, because I’m just not confident in my ability to shred it. I’m not confident my kid won’t take it and use it as a colouring sheet the next day. I’ve been completely paperless since I got home, which is great but not everyone can do it. So it’s about an employer getting in front of those issues instead of dealing with the fallout if confidential information makes its way into the recycling bin.”
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Employers should also be wary of assuming employees are making, or are even able to make, the best choices around the use of technology and related security concerns, adds Chevalier. “For most people, it’s not like you’re going home and working on your old desktop computer. Most people have laptops from their employers already, which is great because it has the appropriate virus protection, malware protection, software already set up. But if not, employers have to deal with that and, from a tech perspective, get people where they should be.”
Meanwhile, many employers have had to make modifications to work hours, pay and other compensation, she notes. While it’s tricky to put these arrangements in writing — as employers have no clear timeline on when the pandemic will be over — it can be a useful moment to communicate with workers in an official capacity.
“Most of the clients that we’ve had, a recommendation they generally did was put some form of agreement in place, where people would sign off on it. Both parties tended to feel like they needed to see it and to understand it and to have those rules of engagement going forward. And in most cases, employers aren’t able to say this is for the next two weeks or six months, it’s just this is how it is right now.”
Chevalier also notes that having an official communications strategy, including laying things out in writing, is an opportunity for employers with staff on furlough. Helping employees to understand what the employer is doing and why, as well as directing them to the government supports available to them, is one way to curtail some of the suffering that comes with such a situation.
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