Do Employees Have the Right to Work from Home?

At the onset of the COVID-19 pandemic in 2020, global workforces experienced a sudden and forced shift into remote work. That experience dramatically shifted expectations and realities for office jobs around the world. Over the last few years, workers have often expressed a preference for working remotely, and in many cases successfully continued to negotiate work from home arrangements as labour market shortages gave employees negotiating power. However, more recent shifts in the economy have resulted in less labour shortages in certain industries, and employers are now increasingly requesting that workers return into the office, at least on part-time basis. This shift was recently highlighted in August 2023 when numerous media outlets reported that even Zoom Videoconferencing requested some of its workers attend the office at least two times per week.[1] This article will explore the rights of both employers and employees when it comes to remote work.

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Footnote

[1] Goldberg, Emma. “Even Zoom is Making People Return to the Office.” The New York Times. August 7, 2023. Retrieved online: https://www.nytimes.com/2023/08/07/business/zoom-return-to-office.html

 

 

COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

Overview

Last year, there was much discussion on whether or not employers could legally implement mandatory vaccination policies in Canada. In the first part of 2021, COVID-19 vaccines were not readily available to all Canadians, and most employers had not implanted mandatory vaccination policies yet. By August 2021, most Canadian adults had been given the opportunity to become fully vaccinated. In this context, on August 13, 2021, the Federal Government of Canada announced the requirement for all federal public servants to be fully vaccinated by the end of September 2021. The Federal Government also instituted mandatory vaccination requirements for all employees in the federally regulated air, rail and marine transportation sectors by October 2021, while at the same time, requiring vaccination to travel by air or train effective November 2021. After the Federal government took the lead, many Canadian employers followed suit, and there was a rapid influx of mandatory vaccination policies implemented throughout the country in both public and private sectors (including unionized and non-unionized workforces).

There are now several Canadian labour arbitration decisions that consider whether or not mandatory vaccination policies in the unionized context are reasonable and justified. To date, most of these decisions have held that mandatory vaccination policies are reasonable and justified, illustrating an overwhelming consensus that employers can legally implement significant health and safety protections in the context of the COVID-19 pandemic. However, not all policies have been upheld in arbitral law. For instance, in one circumstance a labour arbitrator found a mandatory policy to be unreasonable given that workers could perform work remotely, and other measures (such as testing) could be effective in the absence of vaccination. In all circumstances the context of the workplace, along with the alternative mechanisms in the related policy, will be considered when evaluating the reasonableness of a particular policy.

This article will provide a case law update regarding the legality of vaccination policies in Canadian workplaces, updating a previous article written prior to the emergence of these decisions. While these recent decisions are directly relevant for unionized workplaces, the principles set out are useful for all employers, as the courts may consider similar principles when evaluating mandatory vaccination policies in relevant matters (such as wrongful dismissal claims arising out of the implementation of such policies). The current case law suggests that employers can implement protections against COVID-19 in the workplace, but such protections must be reasonable, balanced and relevant to the particular workplace. In the context of the COVID-19 pandemic, employers must continually consider the ongoing changes in public health direction as well as case law, as matters have continued to evolve and change quickly throughout the last two years, and so should each employers’ approach relating to health and safety measures (including mandatory vaccination policies).

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COVID-19 Vaccinations and Workplace Rights

Overview

More than one year ago the COVID-19 pandemic shut down most of the world. Such shutdowns gravely impacted many businesses, and otherwise shifted the landscape of working life for businesses that could legally remain open by providing working from home arrangements (when possible) or by requiring significant protective measures (for essential services). Although there is much speculation regarding how the pandemic might permanently shift working life for some sectors over the coming years (including more work from home positions), the reality is, many jobs can only be performed in person and some employers may prefer their staff attend the workplace for various reasons (such as increased productivity, improved morale, building relationships, and other reasons).

As the Canadian government attempts to ramp up its vaccination efforts, limited vaccine supplies, combined with vaccination hesitancy, have slowed the process. At the same time, Canadian public health officers have recently declared that we are in the third wave of the COVID-19 pandemic, and most recently we are seeing an increase of younger patients hospitalized, gravely ill or even dying as a result of contracting COVID-19. Unfortunately, many of these patients include essential workers (like teachers and factory workers) who may have contracted COVID-19 from workplace exposure.

In this context, Canadian employers must consider what measures can legally be taken to protect their workplace. Employers may be considering various measures such as: social distancing, personal protective equipment (“PPE”) and vaccination requirements. At the same time, some employees may have strong opinions or views on why they do not wish to get vaccinated. Other workers may have religious reasons or health related issues that preclude them from getting vaccinated. With all of these considerations, many employers and employees alike want to know their legal rights relating to the imposition of workplace vaccination rules. Balancing COVID-19 protections with workers’ rights is a difficult and unprecedented circumstance that many employers will face in the coming months. This article will discuss legal issues and considerations relating to implementing requirements or policies around COVID-19 vaccinations in Canadian workplaces and other related solutions to consider when trying to protect the workplace from a COVID-19 outbreak.

Please see the updated version of this article, published on Feb 10, 2022: COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update 

Evidence Collection: Practical Tips for Workplace Investigations

Overview

Workplace investigations have become commonplace across Canada. Many Canadian jurisdictions require that employers implement workplace harassment and discrimination policies, which often include mandatory investigation provisions. Whether or not investigations are legally mandated, it is sound practice for an employer to conduct an investigation when there may be potential workplace harassment, human rights violations, breach of company policy, criminal activity, security breaches, legal action, or media scrutiny.

A fair and reasonable investigation can provide a defense for employers to assist in future litigation and/or human rights complaints.[1] Beyond legalities, investigations can also assist employers in identifying and resolving workplace issues, helping them to create a more productive and healthy working environment. For all of these reasons, workplace investigations provide an important function in today’s workplace. However, an investigation will only be useful if it is conducted in a fair and reasonable way.

Collecting the evidence is a fundamental step in conducting a fair investigation. Evidence may include witness statements, video surveillance, supporting documents (emails, letters, phone records, time sheets, text messages, photographs) and any other useful information regarding the relevant issues. While many witnesses may participate in good faith, people’s memories are not always reliable, and co-workers may share stories before an interview which could taint recollections. Further, not all witnesses will participate in good faith, resulting in dishonest and/or inaccurate witness statements on some occasions. Because of witness unreliability, workplace investigators should adequately instruct witnesses on confidentiality, while also making best efforts to collect and to preserve supporting documents when available. Following proper processes will assist investigators in ensuring that they have meet the good faith standard as required to conduct and complete workplace investigations. This article will highlight important considerations in collecting and preserving evidence when conducting a workplace investigation.

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[1] See for instance: Morgan v. University of Waterloo, 2013 HRTO 1644 (CanLII) where the HRTO held that the university’s response to the complaint was “reasonable” and that the university had met its duty to investigate the circumstances; therefore, the award for damages came from the individual respondent only (and not the university). In this regard, a reasonable response and proper investigation can vitiate liability even in a circumstance where there is a finding that workplace harassment occurred.

Fireable Offences Without Defences

Overview

Considering the difficulty in proving just cause, along with the potential monetary consequences for improperly alleging just cause, employers should engage in sufficient procedural steps prior to asserting just cause for termination. Such steps would likely include engaging in a thorough and fair investigative process and/or providing employees with warnings in relation to misconduct. Termination for ‘just cause’ (and without notice) is often described as the capital punishment of employment law.  Consequently, employers face a significant burden when trying to prove just cause at law. Arguing just cause for dismissal may be difficult, but not impossible, especially in circumstances involving dishonesty or lack of trust.  Nevertheless, employers should always exercise caution when making just cause allegations, because a legally unsubstantiated just cause termination can be costly. If an arbitrator overturns an employer’s termination decision in a unionized environment, this can result in a decision that reinstates that grievor and provides him or her with significant back pay. Non-unionized employees will generally not be entitled to reinstatement, although, unsubstantiated just cause allegations can be equally expensive. Canadian courts have often awarded significant additional bad faith and/or punitive damages in cases where employers create economic hardship by erroneously asserting just cause and failing to pay an employee’s notice entitlements.

Progressive discipline is one factor adjudicators consider when reviewing a just cause termination, and case-law provides that even a minor offence may justify just cause for dismissal if an employee’s disciplinary record is sufficient. Although certain types of conduct (such as theft or violence) may be more likely to warrant discharge on first offence, employers must always take a contextual approach and view mitigating factors, which may include: lengthy seniority, clean record, condonation, admission of wrongdoing and/or remorse. Further, employers should always consider whether or not there are any potential human rights considerations linked to the misconduct.  For instance, does the employee have a disability that has contributed to the conduct (such as a health condition, addiction or other mental illness)?

Employees facing allegations of misconduct should seek appropriate professional advice to understand what factors may assist in potentially saving their employment relationship (such as candour, honesty and recognition of wrongdoing during the investigation process).

This article will review various decisions upholding a just cause termination, while also canvassing the factors and considerations that impact the determination of whether or not a just cause allegation may be substantiated at law.

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Workplace Harassment After #MeToo

On October 5 2017, the New York Times published an article detailing serious sexual harassment allegations against famous Hollywood producer Harvey Weinstein.[1]  Three days later, his company’s Board of Directors terminated his employment effective immediately.[2] In this context, actress Alyssa Milano took to Twitter, encouraging all women who have been sexually harassed or assaulted to change their status to “Me Too” (a hashtag originally coined by activist Tarana Burke) in order to give people a sense of the magnitude of the problem.[3]  Since then, “Me Too” hashtags spread virally across the world’s social media accounts, having reportedly been posted or commented on millions of times.[4] The women who came forward about sexual harassment allegations were referred to as “silence breakers”, and Time Magazine named these “silence breakers” its “2017 Person of the Year”.[5]  This movement led to an outpouring of new allegations against various male celebrities and public figures on an ongoing basis.  What followed was the rapid downfall of many of those accused, leading to prompt resignations and terminations from their respective roles.

Meanwhile in Canada, two high profile politicians recently resigned promptly after public allegations of sexual harassment and/or misconduct were made.  Amidst the #metoo movement, the Toronto Rape Crisis Centre reported an increase in calls.[6] It appears many employers experienced a similar spike in sexual harassment related complaints, likely due to heightened awareness of the issues and women encouraged to speak out by those who already had. Workplace sexual harassment is a complicated subject.  It involves far more than inappropriate comments or unwanted sexual advances. Sometimes consensual relationships can be considered sexual harassment when a significant power imbalance exists. Consensual relationships gone sour can turn into sexual harassment if reprisals or unwanted advances occur after the relationship ends.  Joking co-workers and jock culture may create a toxic working environment for those exposed to it.  Complainants may not wish to come forward due to fear of losing their jobs.  Not all complaints are meritorious, leaving some respondents wrongly accused, stigmatized and/or wrongfully dismissed.  When receiving a sexual harassment complaint, employers have an obligation to inquire most often by way of an investigation.  Third-party or external investigators may be most appropriate in sensitive situations. Given the complexity of sexual harassment issues, findings and fault may not always be clear cut. In some cases, employers should terminate the respondent.  In other cases, substantiated findings may not warrant termination, but instead discipline and training. The workplace culture must be considered and may require change, and every circumstance must be considered based on its own facts.

The #metoo movement has empowered many women who were the victims of unjust behaviour to come forward, although the movement has its own inequities by persecuting and often impacting the livelihood of the accused without due process, or any process whatsoever.  The court of public opinion quickly makes judgment, but employers should not do the same. Due process is important for all parties, as an employer has an obligation to all of its employees, both in terms of maintaining a safe workplace for all, and in terms of not summarily dismissing someone simply because an allegation is made. This article will explore the complex considerations regarding sexual harassment in Canadian workplaces, consider the roles and obligations of all parties involved, and review the importance of investigations and due process in relation to workplace sexual harassment complaints.

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[1] Jodi Kantor and Megan Twohey.  “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”, NYTimes.com, last modified October 5, 2017, https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html

[2] Robehmed, Natalie.  “Harvey Weinstein Fired From The Weinstein Company”, Forbes.com, last modified October 8, 2017,https://www.forbes.com/sites/natalierobehmed/2017/10/08/harvey-weinstein-fired-from-the-weinstein-company/#12af4f216681

[3] Milano, Alyssa (@Alyssa_Milano). “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”  15 October 2017, 1:21 pm. Tweet.

[4] Unknown. “More than 12M “Me Too” Facebook posts, comments, reactions in 24 hours”, CBSNews.com,  last modified October 17, 2017, https://www.cbsnews.com/news/metoo-more-than-12-million-facebook-posts-comments-reactions-24-hours/

[5] Stephanie Zacharek, Eliana Dockterman and Haley Sweetland Edwards “Time Magazine Person of the Year”. Retrieved from: http://time.com/time-person-of-the-year-2017-silence-breakers/

[6] McLaughlin, Amara. “Toronto sexual assault, harassment services flooded by calls triggered by #MeToo movement”, CBC.ca, last modified October 27, 2017, http://www.cbc.ca/news/canada/toronto/toronto-sexual-assault-harassment-services-flooded-by-calls-triggered-by-metoo-movement-1.4375827

The Golden Years: The Aging Workforce and Human Rights Matters

Overview

Employers can significantly benefit by retaining and hiring older employees who may offer considerable knowledge, experience and insight, along with dedication and work ethic. All of these benefits are accompanied by a unique set of human rights considerations related to our aging workforce, including age discrimination and age related disability.    As the Canadian population ages, so does our workforce. Mandatory retirement programs have generally been outlawed (with few exemptions), and many Canadians now choose to work into their 60s and 70s for various reasons including: fulfillment, financial gains, longer life spans, lack of savings and failed pension plans.

With respect to age discrimination, employees may experience ageism within an ongoing employment relationship, or when trying to secure a new job later in life. Older employees may feel like they are being forced to retire or may be passed up for deserved promotions on the unverified assumptions they will not be working too much longer. Older employees may also be targeted for termination, when they had intended to work for several years more. Persons seeking new jobs later in life may experience age discrimination during the recruitment process.

With respect to age-related disability, older employees may experience medical issues, and employers must accommodate age-related health issues in the exact same way that any other disability is accommodated. Some disabilities are far easier to accommodate than others. A defined physical limitation may be readily accommodated on a permanent basis by using an assistive device, whereas an invisible disability and/or cyclical disability may require a more flexible accommodation approach. For instance, an employee experiencing certain forms of arthritis may feel significant pain and require time off during flare-ups; however, the cyclical and sporadic nature of the required accommodation could present scheduling challenges.  Far more challenging is understanding and accommodating a brain disorder (such as Alzheimer’s disease or dementia).  In such situations the employee may not even be aware of their own health issues, and the employer will be tasked with determining if any medical conditions even exist and if so, if such can be accommodated.

The aging population may also result in increased requests for family status accommodations, when children or relatives request time off to assist in the caregiving needs of their elders.

This article will explore some key human rights considerations and interesting case-law related to our aging workforce.

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Invisible Barriers: Accommodating Mental Illness in the Workplace

Mental illness is a leading cause of disability in Canada.(1) In fact, at least 500,000 employed Canadians are not able to work due to mental health problems in any given week.(2) Twenty percent of Canadians will personally experience a mental illness in their lifetime, and it is likely that all of us will be directly or indirectly impacted by mental illness through family members, friends or colleagues.(3) As Canadians and medical professionals increase awareness and understanding regarding mental illness, our workplace and human rights laws similarly evolve in attempts to protect mental illnesses like any other disability. While our laws strive to provide adequate workplace protections in relation to mental illness, the art of managing mental health accommodations remains challenging for employers and employees alike.

Visible or physical disabilities can often be easier to understand and to accommodate. Defined physical restrictions or recovery periods provide finite terms which are easier to address and are easier to accept as legitimate needs. Accommodating the invisible barriers presented by mental illness often remains far more challenging. Many persons experiencing mental illness may not wish to share details in the workplace, fearing stigmatization, embarrassment or privacy issues. Other persons may lack awareness that they are undergoing a health-related issue. For example, those struggling with addiction may have little or no self-knowledge that a medically recognized disability drives their compulsion to use. Adults experiencing their first episode related to mental illness may not recognize the signs and symptoms until weeks, months or years after the occasion.

Employers face a variety of different but equally challenging situations. For instance, when an employee silently struggles, employers may be tasked with difficult conversations to ensure adequate inquiry while not overreaching. The inability to clearly define prognosis and restrictions related to mental illness can make it difficult for employers to differentiate between legitimate medical needs versus employee abuse. Employers also often receive questionable and seemingly unsubstantiated accommodation requests, for instance: he cannot work Tuesdays or he cannot drive a Smart Car. No matter how obscure, employers should carefully consider each circumstance on a case-by-case basis and request adequate medical information without overreaching. Even in the very best circumstances where the employer and the employee harmoniously work together, difficulties may arise since the unpredictable and episodic nature of some mental illness can create attendance and staffing issues, and create obstacles even with good faith accommodation efforts.

Understanding and accommodating mental illness is an evolving area that requires a flexible approach. This article will discuss the key legal requirements and interesting related case-law related to workplace mental health issues.

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Workplace Bullying and Harassment: Costly Conduct

As media scrutiny over schoolyard and cyberbullying pervade the news, allegations of workplace harassment and bullying are on the rise. Media reports reveal the deleterious and even deadly impact that bullying can have on children in our communities. Unfortunately for employers, adults in our workplaces sometimes engage in similar transgressions. While the popularization of the terms “bullying” and “harassment” has both educated and empowered employees to assert the right to a respectful workplace, it has conversely sometimes resulted in overuse of the terms and meritless complaints in relation to reasonable management measures. Employers are left with the difficult task of managing all competing interests to ensure a safe, respectful and productive work environment.

One Canadian professor previously estimated that a whopping 40% of Canadians experienced one or more acts of workplace bullying at least once a week.(1) Although it is difficult to determine exactly how much harassment and bullying actually occurs in Canadian workplaces, we can be certain of the impact of such conduct. Workplace bullying and harassment create a toxic work environment resulting in many negative effects which may include: decreasing productivity, increasing employees’ use of sick days, damaging employee morale and causing attrition of good employees. It can also result in significant legal liabilities. Considering all of these potential impacts, the tangible and intangible costs of workplace harassment and bullying can be high. This should be reason enough to motivate employers to expeditiously address such issues; however, for those not motivated by practical business measures or healthy employee relations, we should also consider the expansion of Canadian laws to protect workers from harassment and bullying, and the significant liabilities that can arise when such issues are not properly addressed.

Download PDF: Workplace Bullying and Harassment: Costly Conduct

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