LEGAL DILEMMAS IN THE HYBRID WORKPLACE

BY REBECCA MELNYK

Almost two-thirds of Canadian workers indicated they prefer hybrid or remote workplaces in an Accenture survey last year. A more recent Ipsos poll in May 2022 found one-in-three workers would change jobs if their employers mandated an exclusive return to the office. Organizations are fashioning work models that reflect flexible and remote preferences. Along with this culture shift comes new legal considerations and best practices for safe, equitable spaces.

Some employees may need additional support to succeed in a hybrid workplace, whether it’s because of protected grounds under human rights legislation or performance needs, says Maddie Axelrod, a labour and employment lawyer with Borden Ladner Gervais LLP. She was speaking in April during a webinar on the topic.

Companies may likely field various concerns around inclusivity. There could be animosity from workers who are required in the office versus their teleworking colleagues. Employees who’ve gone remote might also feel detached from the physical workplace. “Equitable treatment on the team is important for obvious reasons like team morale,” says Axelrod. “We also know there’s a challenge with recruitment and retention right now. People may not want to return to work and join an office where they feel they’re not part of a cohesive team.”

She advises employers to listen and survey for input and develop policies and practices that account for various types of work—for instance, building a hybrid model into promotion decisions.

“If you have more traditional markers of success or commitment and you’re shifting into a hybrid workplace, give some thoughts as to whether you need to adjust those metrics to match,” says Axelrod. “Have you traditionally been rewarding people who spent most time in the office and are you no longer going to be doing that?”

CHANGES TO TERMS OF EMPLOYMENT, OVERTIME, ATTENDANCE

In the context of flexibility, the request for alternative arrangements is growing. If a change to terms of employment occurs as a result, companies should secure their workers’ written consent prior to reduced hours or wages, and changes in responsibility, says Melissa Eldridge, labour and employment lawyer with Borden Ladner Gervais.

She references Hagholm v. Coreio Inc., 2018 ONCA 633, in which the recall of an employee previously permitted to work from home three days a week amounted to constructive dismissal. The employer had changed the terms of employment without the worker’s consent.

A commute-free, remote office culture is also prodding more people to work extra hours at home due to choice or losing track of time. “In terms of a role, what they are paid and their contract, they may be entitled to more pay for that time,” says Axelrod. “When people are working remotely, it is important to develop policies to ensure everyone is clear about the parameters around working longer hours and overtime, and the obligation to track and record those hours.”

Employers are encouraged to set boundaries for when the work day begins and ends—whether that means logging in and out on a traditional 9-to-5 schedule or working within flexible hours.

PRIVACY AND CONFIDENTIALITY AT HOME

As of June 2, employers who employ 25 or more workers must now have a written policy in place on electronic monitoring. The new legislation is part of Bill 88, the Working for Workers Act, 2022, which became law in April.

Although the policy doesn’t give workers a right-to-disconnect, many employers are taking the opportunity to review expectations around disconnecting, which is harder to accomplish with remote arrangements, says Axelrod.

“Home offices are still in the home and work is being conducted there,” she adds. “There is a limited expectation of privacy even with a work computer.”

The policy must identify whether an employer electronically monitors employees and, if so, describe how and in what circumstances employees are electronically monitored and identify the purposes for which electronic monitoring may be used and how.

Even if companies don’t engage in e-monitoring, Eldridge suggests doing a “quick sweep” to determine whether contracts, collective agreements or policies touch upon this practice. Due to Bill 88, as well as new considerations with the hybrid workplace, she also advises updating an acceptable use policy, which establishes rules that a user must agree to for network access.

“If e-surveillance is happening, for example—to keep track of vehicles used in the workplace, mileage or locations visited on any given day, there is a justifiable use that could be a pre-existing arrangement that exists,” she says. “The rationale for monitoring is often a very important point and goes a long way in terms of your efforts to be transparent with your employees.”

On another level, the security of employers’ information that will be accessed remotely is also a key privacy consideration, whether work is being conducted on home or company networks.

“There may be various other non-COVID reasons that people can’t fit into a hybrid workplace as planned. Flexibility and creativity are going to be key here.”

PROTECTING WELLBEING IN REMOTE WORKPLACES

Under provincial labour laws, such as Ontario’s Occupational Health and Safety Act (OHSA), employers must take every precaution reasonable in the circumstances to protect the health and safety of workers. The OHSA has an exception for private establishments.

“It is not entirely clear if this will apply in the context of people working from home, but our best advice is to assume that it does and this obligation to protect your workers is still going to apply even when they are working remotely,” says Axelrod.

As she further explains, decisions from the Workplace Safety and Insurance Board (WSIB) show their coverage generally extends to employees “performing job duties in the course of employment”— on the road, in other remote places or in the office.

“Another best practice is creating a risk assessment checklist that offers employees a step-by step review of their working environment at home or in the office,” Eldridge

recommends. “It promotes a culture of safety for each and every employee.”

She advises asking employees to “sign back” to show they’ve scanned for hazards—for instance, loose cables and back-friendly ergonomic equipment.

‘DUTY TO ACCOMMODATE APPLIES AT HOME’

Hybrid or remote work models must also reflect the duty of employers to reasonably accommodate employees who fall into groups protected by human rights legislation to the point of undue hardship.

In what will likely be a “very case-by-case and factspecific” situation, high-risk employees may continue requesting remote work or a tweaked hybrid model.

“If an employee has a legitimate substantiating document for human rights-related reasons and can’t fit into the hybrid work model the way you thought, then you need to go through an accommodation process,” says Axelrod. “There may be various other non-COVID reasons that people can’t fit into a hybrid workplace as planned. Flexibility and creativity are going to be key here.”

Companies may also need to provide special office equipment for these home-working employees.

Meeting accommodation needs isn’t a one-size-fits all solution. Potential outcomes could mean modifying or bundling job duties, alternative assignments, disability leave for strictly in-office roles, or full-time or part-time remote work. A flexible schedule for work-life balance is yet another option many companies are exploring—even if the statue doesn’t apply.

Close to half (45 per cent) of Canadians say the pandemic has negatively impacted their mental health, according to LifeWorks Inc.’s mental-health index in May.

“They are not the same employees who existed prior to the pandemic,” Eldridge observes. “We are seeing employees who can feel drained or bored because their life has been infiltrated.”

In other instances, workers may feel anxious to connect with colleagues or exhausted from video calls. The lawyers offer a spate of strategies for tackling declining mental health: combat digital exhaustion with acceptable in-person arrangements; invest in better benefit plans and allowances, such as food delivery; change traditional working hours for balance; focus on active engagement; and set clear expectations.

As more people ditched urban life for small towns and other provinces, companies are encouraged to proactively clarify jurisdictional issues that come from teleworking across any border.

Employees may require working permits or visas. Companies may need to “carry on business” in that jurisdiction with corporate filings and paying taxes, as well as registering for workers compensation and reviewing applicable local employment laws.

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TIPS FOR HYBRID AND REMOTE WORK POLICIES

As a form of legal protection, a hybrid or remote work policy outlines when and how employees can work outside the office, and should include all leaders within an organization. This is a document that companies can convey as fluid—with potential future modifications,

The lawyers advise this policy reminds employees of work obligations, such as attendance, performance and confidentiality, and reiterates the code of conduct as workplace harassment can also transpire in remote set-ups.

On top of that, companies can clarify expectations for a safe workplace, procedures for hours of work and overtime, and equipment reimbursement, with room to vary the policy for human rights accommodation purposes

“Policies aren’t going to anticipate every single possible situation that is going to arise, especially as we venture into this new area of hybrid working,” says Axelrod. “But if you set out guidelines and general principles— that moreor-less expected conduct you have for your employees, it will put you in a good position to have a strong, effective, cohesive hybrid workplace.” | CFM&D

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TECH SECTOR SPINOFFS EVOLVING RETAIL APPETITE OPERATIONAL SUPPORT TALENT ENTICEMENT TACTICS PROPERTY TAX DEFINING DEMAND Occupiers’ liability: A board meeting gone wrong

Anyone who has ever been to BY DAVID ELMALEH a board meeting (or a partners, AND GABRIELA CARACAS shareholders, town hall, or any similar type of meeting) can attest to

the tension that often arises. The law is clear that occupiers have a duty to maintain their premises reasonably safe for those who enter it. But what about when an individual commits assault while at one of these meetings? Should the occupier or organizer of the board meeting be liable for failing to ensure the safety and security of those lawfully on the premises?

In Omotayo v. Da Costa, 2018, the defendant occupier, Metro Toronto Condominium Corporation 1292 (MTCC 1292), was successful in dismissing the plaintiff’ s claim and the assailant’ s crossclaim when a member in attendance at a condominium board meeting struck another meeting attendee with a chair.

Justice Nishikawa found that the duty the condominium corporation owed to the plaintiff did not include preventing an assault that occurred during their condominium board meeting.

Facts of the case

The plaintif f, Jacqueline Omotayo, was a resident and former chair of the condominium corporation. The defendant, Jose Da Costa, was also a resident and former president of the condominium corporation. An emergency board meeting was held on Oct. 4, 2011, to discuss the future organization of the board as Ms. Omotayo had recently been removed from her position as chair and Mr. Da

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Costa advised that he no longer wished to occupy his role as president. The emergency meeting took place at the defendant’ s (MTCC 1292’ s) premises.

At the emergency meeting, the plaintiff and Mr. Da Costa entered into a heated argument, which led Mr. Da Costa to “lose it” and strike the plaintiff on the head with a chair. Mr. Da Costa was charged by the police and received a conditional discharge for assault with a weapon.

The plaintiff commenced a civil action against Mr. Da Costa for his use of force as well as MTCC 1292 for failing to ensure her safety and failing to employ security measures at board meetings. MTCC 1292 brought a motion for summary judgment to dismiss the plaintiff’ s claim against it which was only opposed by Mr. Da Costa given his crossclaim against MTCC 1292 for contribution and indemnity.

Summary judgment motion

MTCC took the position that its duty under the law is confined to the physical condition of the premises and foreseeable risks, not the unforeseeable conduct of individuals in attendance. Meanwhile, Mr. Da Costa argued that MTCC 1292’ s duty extends to having rules of conduct for meetings, policies relating to abusive language, threats and intimidating behavior, and a duty to hire and supervise competent professionals to oversee its business (including, if appropriate, security personnel). Mr. Da Costa further argued that the assault was foreseeable given the quarrelsome nature of MTCC 1292’ s board meetings and a prior unrelated incident involving the plaintiff and another member of MTCC 1292 wherein the police was called.

In reaching her decision, Justice Nishikawa looked to Coleiro v. Premier Fitness Clubs where summary judgment was granted in favour of the defendant www.REMInetwork.com | June 2018 15

Want to stand out on social media? Don’t fake it By Steven Chester Let’s face it, we all want our businesses to be social media rock stars, and we know it ain’t easy. It’s becoming more prevalent that some of the most popular social media platforms have iff commen been infiltrated by those who game the system. Da Costa fo TCC 1292 fo This includes those that buy fake followers and “likes” in order to create the illusion that their n failing to social media profile is more popular than it is. oard m t These fake followers are predominantly bots – otion f r su accounts run by software designed to look and the pl intif ’ act like real people. nly opposed New services are also popping up that allow o sc ai ag authentic social media accounts to become nd inde part of the bot game. By signing up for the service, the user authorizes their account to automatically like, follow and randomly udgme m comment on other users’ posts, and in turn the positi they trade that fake engagement with other w is confine users. Sound harmless enough? The thing the prem is you have no say in in the message your account is spreading or where it ends up. e unforese in attendan Ask yourself this: What’s more important, a argued th having 50,000 cosmetic followers, or having 500 followers who are in your target market s o h ving that actually want to hear from you? s, policies re t d hrea du ts y a As a consumer, it’s even simpler, as deceptive tactics are easy to spot. If you’r using underhanded methods to promote e professional your business, this can be viewed as a luding, if ap reflection of your product or service. Your Mr. Da Cos integrity is at stake. ult was fore This is one of the more complex topics that nature of M can’t be fully covered in this space. As always, nd a prior u I invite you to stay social and continue the la nt f d conversation on Twitter where I’ll share a link to at @Chestergosocial the full article. 92 wherei ng her dec Steven Chester is the Digital Media Director of MediaEdge Communications. With 15 years’ experience oo to C in cross-platform communications, Steven helps s where sum companies expand their reach through social media and other digital initiatives. To contact him directly, email d in favour gosocial@mediaedge.ca. SERVING THE FACILIT Y CLEANING & MAINTENANCE INDUSTRY

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MULTIPLE CHOICE

Flooring designs that promote learning and foster creativity in educational settings.

Education projects present unique challenges. For example, teachers, professors and school administrators may have different ideas for how classrooms, media centers or study areas should be designed to best meet the needs of the students. Likewise, the students themselves may have different preferences for how they study, collaborate, or work best individually.

One important factor that must be considered to meet these various needs is careful consideration of the flooring type. While there are many different surfaces and materials to choose, flooring is an expansive surface extending into rooms, hallways, common areas and other spaces. Whether it’s for a K-12 building or higher education setting, the right flooring foundation can foster learning and creativity, and even help keep students inspired. But, to ensure the right flooring choice is selected, it’s important to ask several important questions.

WHO WILL USE THE SPACE AND WHAT IS THE INTENDED EDUCATIONAL FOCUS?

K-12 students have different needs than college students. As a result, there are different functions and educational activities. Kindergarten teachers may want their students to gather on the floor. Naturally, a soft surface carpet flooring might be a good choice. College students, conversely, might

Biophilia is humankind’s desire to commune with nature. But when students spend a tremendous amount of their school day indoors, how is that need resolved?

While the healthcare industry initially led the way in this arena, managers and designers of educational spaces have seen the enormous benefits provided in the classroom when students of all ages are provided with connectivity to the natural world.

Tapping into designs that reflect nature seemingly achieves the same result. Consider using flooring made elements found in nature such as wood visuals, curvy lines rather than geometric ones or flooring that mimics nature. These subtle cues signal the benefit of the outdoors to the physical self.

Studies have shown that a design focus on biophilia reduces stress and fatigue, improves cognitive function and creativity, as well reduces absenteeism, promotes test scores and creates a more naturalized feeling inside of a space.

While a design might not encompass an entire educational room or space with biophilia in mind, bringing it to the flooring first— the largest visual that our eyes are known to consume—is an easy way to achieve the obvious benefits of biophilia.

need to collaborate and group up with each other for team projects, so a hard surface where chairs and desks can be easily moved without damaging the flooring would make that easier. When planning and designing for an educational space, it’s critical to know the end user’s activities, the type of experience desired for that space and what kind of flooring choice can best support that.

WHAT ARE THE PERFORMANCE CHARACTERISTICS AND/OR MAINTENANCE NEEDS? AND HOW DO THOSE NEEDS LEND THEMSELVES TO A COHESIVE DESIGN?

Carpet in either a modular or broadloom format can be a viable choice. Carpet is softer and offers better sound absorption than other flooring options, which brings acoustical benefits and can provide a nice warm ambience for the room. Because of its softness, it can also be better at preventing injuries that might occur with trips, slips for falls. Broadloom carpet with welded seams and a moisture barrier backing provides excellent stain protection, while carpet tiles offer an easy opportunity to repair small sections of the area without having to replace the entire flooring. Modular carpet also allows flexibility in design for just the right look. When selecting carpet, look for a Texture Appearance Retention Rating (TARR) of at least 3.5 for an education facility.

Another flooring option is Luxury Vinyl Tile (LVT). This flooring type is engineered to withstand extreme foot traffic, is easy to maintain, is often waterproof and can be cost effective, an important consideration for many schools. LVT can often provide a range of design aesthetics, including the ability to create custom looks that can contribute to school branding. To help with sound absorption, some LVT providers offer a specialized underlayment. It’s also important to select a wear layer with 20 mil or higher to assist with the performance needed for the space.

A rubber flooring choice is quiet, durable and comfortable underfoot, an important attribute, especially for teachers or instructors who spend most of their time standing. Additionally, rubber provides an extra level of safety when it comes to falls - for people or manipulatives. Whether it’s a kindergartner tripping over an untied shoe, a teacher falling in the hallway or a biology major dropping an old beaker, rubber flooring allows for better outcomes when people or things hit the ground. Plus, rubber is easy to clean and maintain. It has self-migrating waxes that come to the surface when the floor is cleaned and/or buffed over the life of the product, so there is never a need to wax the floor, thus a lower maintenance cost.

WHAT ARE THE DESIGN CAPABILITIES OF THE FLOORING?

Many schools at the K-12 and college and university levels recognize the power that comes when they connect their brand to their physical spaces. Incorporating school colours in the hallways, the dining areas, or the student union, reinforces a school’s brand with students, faculty, staff and visitors. A flooring solution can support a school’s branding, but it may require a custom carpet with custom colours to match to the school’s logo.

Of course, branding is just one consideration when it comes to design. Many schools will want to use the flooring to assist with wayfinding to direct people from one area to another or to signal to people they’ve entered a new space.

Design should incorporate the intent of the space. For example, does the space need bright colours to foster energy and excitement, such as what might be needed in a K-5 building? Or does the design need to be more “muted” with toned-down colours to help students with focus or concentration. The best floor covering manufacturers should be able to assist with wayfinding, custom design, and other design services to meet a facility’s various design needs.

Today’s educational spaces are dynamic and can present challenges when trying to align design, functionality, maintenance, and budget requirements. But asking the right questions, especially when it comes to the flooring, can mitigate those challenges. Moreover, the right flooring for a space can be a major driver towards safe and comfortable spaces that can also spark student learning, creativity, and inspiration. | CFM&D