Employees who love working from home, beware
Your job could be outsourced to people working remotely from other countries
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 up 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.