Here’s a warn­ing for em­ploy­ees who love work­ing from home

Your job may be out­sourced to re­mote work­ers else­where, Howard Levitt writes.

Calgary Herald - - FINANCIAL POST -

Last week, I was hon­oured to be the only lawyer speak­ing at a three-day con­fer­ence on hu­man re­source is­sues fo­cused on COVID-19, given by the Char­tered Pro­fes­sion­als in Hu­man Re­sources Canada, an as­so­ci­a­tion rep­re­sent­ing 27,000 hu­man re­source pro­fes­sion­als through­out the coun­try, other than On­tario.

Since HR pro­fes­sion­als have been liv­ing and breath­ing the is­sues I have been writ­ing about, it was not sur­pris­ing to re­ceive many ex­cel­lent ques­tions.

Here are sev­eral, along with my an­swers:

Q: What do you think will be the big­gest dis­rup­tion or new prece­dents set in em­ploy­ment law as a re­sult of the pan­demic?

A: There are two ma­jor changes.

The first dis­rupter is the new­found de­sire of Cana­di­ans to work from home. A re­cent poll by John Wrights’ Dart Re­search found that 84 per cent of em­ploy­ees, now work­ing from home, wish to con­tinue do­ing so at least some of the time, and 46 per cent for a sig­nif­i­cant por­tion of the time.

Once em­ploy­ers be­come com­fort­able with em­ploy­ees work­ing from home and in­ter­act­ing ex­clu­sively through Zoom meet­ings, writ­ten com­mu­ni­ca­tions and tele­phone calls, they will re­al­ize that it is ir­rel­e­vant where that em­ployee ac­tu­ally re­sides.

If the em­ployee is not in the of­fice any­way, what dif­fer­ence does it make if they are even in Canada. If it does not mat­ter if they live in Canada, then why not hire a skilled em­ployee in In­dia, Bangladesh or any­where else, at a frac­tion of what they are pay­ing their Cana­dian equiv­a­lent.

Put crassly, why not pay $3 a day rather than $300, par­tic­u­larly in a world where you are com­pet­ing with com­pa­nies in those coun­tries. Those ad­vo­cat­ing work­ing from home have not ad­dressed this prob­lem and it has not even been part of the de­bate. But it’s an in­ex­orable log­i­cal con­se­quence. What ru­inous con­se­quences might this have for our un­em­ploy­ment rate and tax base?

An­other as­pect of work­ing from home is that em­ploy­ers may tol­er­ate it ini­tially but, at some point, re­al­ize that, for many jobs and in­di­vid­u­als, it’s less pro­duc­tive. But when they will ask em­ploy­ees to re­turn to work, the forced re­lo­ca­tion be­comes a con­struc­tive dis­missal.

The other ma­jor dis­rupter is that, al­though it was in­con­ceiv­able in most work­places even three months ago, em­ploy­ers have be­come ac­cli­ma­tized to lay­ing em­ploy­ees off or re­duc­ing their wage and hours of work.

Hav­ing done this with ap­par­ent im­punity, to the ex­tent em­ploy­ees ac­cepted it with­out stip­u­lat­ing the con­di­tions I dis­cussed in these col­umns, it has now be­come part of their con­tracts of em­ploy­ment.

Em­ploy­ees will find that they will be in­creas­ingly laid off or have their wages re­duced as em­ploy­ers be­gin us­ing le­gal tools never uti­lized be­fore. Sim­i­larly, em­ploy­ers will be­gin in­sert­ing the rights into em­ploy­ment con­tracts to lay em­ploy­ees off or re­duce their hours or wages with­out it be­ing a con­struc­tive dis­missal. That, too, will be a ma­jor change to work­place le­gal re­la­tions.

Q: If some­one has men­tal health is­sues such as anx­i­ety and does not want to come back to work, should we sup­port them to claim short-term dis­abil­ity and longterm dis­abil­ity?

A: Em­ploy­ers must ac­com­mo­date safety is­sues. They need not ac­com­mo­date the anx­i­ety or stress of re­turn­ing to work. Stress with­out a di­ag­no­sis of anx­i­ety dis­or­der or de­pres­sion is not a dis­abil­ity, which is re­quired for short-term dis­abil­ity.

While the CERB pro­vides $2,000 ev­ery four weeks, STD pays full salary for a num­ber of weeks. If you place em­ploy­ees who ex­press fear of re­turn­ing to the work­place on STD, you are in­cen­tiviz­ing em­ploy­ees to claim that they are anx­ious, so as to claim STD rather than the CERB. Worse, em­ploy­ees who come to work will be re­sent­ful of those claim­ing STD, and you may be at risk of more work­ers mak­ing that claim.

Q: Is the em­ployer/of­fice en­vi­ron­ment re­quired to pro­vide san­i­tized wipes or masks or can they re­quest em­ploy­ees to bring their own at their own costs?

A: If the work­place re­quires per­sonal pro­tec­tive equip­ment, they must pro­vide it. As a mat­ter of morale, it’s use­ful to pro­vide it to em­ploy­ees even when it is not manda­tory.

Q: What if an em­ployee re­fuses to come to work as they are not able to so­cially dis­tance while tak­ing the pub­lic tran­sit and feel it’s un­safe?

A: How one trans­ports them­selves to work is ir­rel­e­vant to whether the em­ployer can re­quire them to re­turn. That is a func­tion of the safety of the work­place it­self.

Q: Are you ob­li­gated to pro­vide er­gonomic equip­ment to em­ploy­ees who re­quire it at home?

A: Yes. The least ex­pen­sive means of deal­ing with this may be to trans­port it to their homes un­til the of­fice opens again. But you don’t need to pro­vide it at home if the of­fice is open to them and work­ing from home is not part of the nor­mal re­la­tion­ship.

Got a ques­tion about em­ploy­ment law dur­ing COVID-19? Write to me at levitt@levit­tllp.com.

Fi­nan­cial Post

Howard Levitt is se­nior part­ner of Levitt LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight prov­inces. He is the au­thor of six books in­clud­ing the Law of Dis­missal in Canada.

CHRIS RAT­CLIFFE/BLOOMBERG

Em­ploy­ers may ini­tially tol­er­ate em­ploy­ees work­ing from home post-pan­demic. But for many jobs and in­di­vid­u­als, work­ing from home at some point will be less pro­duc­tive.

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