Category: Uncategorized

As we continue to navigate the new world of work, with parents working at home alongside their children, what legal issues should employers be cognizant of when it comes to accommodations?

“You want to make sure that you keep employees in your good graces, and you want to make sure that you’re retaining a staff that wants to work with you, and that will come back to work,” says Richard Johnson, cofounder and partner at Ascent Employment Law in Vancouver. “It’s the practical side of accommodating your employees and the business case for that.”

Johnson will be speaking at the HRD Employment Law Masterclass 2021 on Feb. 16, and he provided Canadian HR Reporter with a taste of what he will be speaking about on childcare obligations, accommodations and COVID-19.

“I’m going to be speaking about the practical benefits of accommodation when folks have kids at home and how to deal with Zoom calls and noise in the background and homeschooling, but then also what the requirements are strictly from a legal perspective,” says Johnson.

“I have two young ones myself so it’s a near-and-dear issue to my heart.”

B.C. case raises questions

In most provinces, both employment standards and human rights legislation govern how parents must be treated but the law is ever-fluid, he says, and one case in particular is winding its way through B.C. courts that might impact the landscape in future.

“Essentially, it’s related to the requirement to deploy your employees away from home on a site somewhere, [so they’re] living there during the week and maybe coming home on weekends. It integrates all this stuff to deal with what a parent can and cannot be required to do when they’ve got kids at home: Can you deploy them? Or is that considered discrimination?”

Richard Johnson

The case, Envirocon Environmental Services, ULC v. Suen, was recently denied leave to the Supreme Court and it hinges on what is family status discrimination. It involves a worker who refused a transfer to another province after he argued it would be discriminatory for him to be away from family for long periods of time.

“There’s still a lot that employers can do to force employees to work under certain conditions but that’s an interesting state of the law right now,” says Johnson. “[That case] will potentially make its way up to the courts and we’ll see how law of the land will deal with it, either through the B.C. courts or up to the Supreme Court of Canada.”

Schooling choices

For some parents, a choice must be made on whether or not to keep children at home to take school and be accommodated by their employer, says Johnson.

“I’m getting a lot of questions about whether or not people who are choosing to pull kids out of school because of COVID, whether they need to be accommodated or whether you can say that that’s a preference — they’re choosing to do that because schools are open. And then advising my employer clients what they can do if an employee chooses to have their child at home and teach them themselves as opposed to putting them in school and picking them up at three o’clock or going to a daycare.”

It’s not as simple as saying yes to everything requested by an employee, he says.

“You don’t have to accommodate preferences. If a person wants to keep their kids at home and teach them because of concerns over COVID, that’s fine. But you have to look at what they’ve done to try to find other solutions, whether the other parent can stay home, or whether there’s a nanny, or whether they’ve sought other reasonable options.”

To maintain a harmonious relationship between employer and employee, it’s best to give and take, says Johnson.

“I’m finding that the most successful situations right now are where an employer is a bit flexible in their mindset. A lot of employers and employees have found ways to work around this with remote-work arrangements so that maybe half-days are possible where the kids can have somebody take care of [them] for half a day; you can still get your work done, unimpeded,” he says.

“But the problem for a lot of employers is having employees that are sitting there with noise in the background, the kids are bugging the parents. And the employers are frustrated because they know they’re not getting 100 per cent from employees. That’s really what we’re facing a lot.”

Statutory leaves are another way of dealing with childcare obligations, while the federal government recently committed millions to building an early learning and child-care system.

As more organizations pivot to a permanent remote working model, complex legal issues are on the rise in Canada.

From bereavement policies to accommodation requests to unfair dismissals, HR is inundated with new legislations to cope in a post-COVID world.

That being said, there’s one timeless HR issue that’s going unchecked – office romances.

The current crisis may have eradicated the ‘traditional’ inter-colleague relationship – but that doesn’t mean HR leaders should forgo legalisation.

HRD spoke Michelle McKinnon, associate at law firm Harris & Company, who revealed employers’ obligations around relationship policies.

“Although an employer generally cannot prohibit romantic relationships in the workplace, or otherwise direct employees in relation to their personal relationships, an employer has a legitimate interest in managing conflicts of interest and the risks associated with sexual harassment,” explained McKinnon.

In addition to the above concerns, other legal consequences McKinnon mentioned included;

• Constructive dismissal complaints arising from a toxic work environment.
• Grievances (unionized workplaces).
• In addition to human rights complaints, civil claims for intentional infliction of mental distress. An employer may be held vicariously liable for the actions of its employee, in certain circumstances.
• In British Columbia, WorkSafeBC complaints and investigations, including claims for compensation based on a mental disorder arising from bullying and harassment.

“It is therefore advisable to have a written workplace policy governing these issues,” added McKinnon.

“A workplace policy should be clear and unambiguous, communicated to employees, and should be consistently enforced. Sexual harassment policies in particular should be drafted carefully to ensure compliance with applicable legislation.”

To hear more on legal issues on the rise in Canada, sign up for HRD Canada’s upcoming Employment Law Summit Vancouver here.

Health and safety is paramount for both employers and employees as we navigate a return to workplaces but what are the main considerations when reopening?

“The key in each province is you’ve got to line yourself up with the recommended protocols that are set out with the occupational health and safety bodies,” says Maxwell Brunette, partner at Gowling in Calgary. “See what the regulators are saying about it and line yourself up with those standards.”

Brunette gave Canadian HR Reporter a sneak peek at key points in his upcoming talk at the HRD Employment Law Masterclass 2021 on Feb. 16.

For those employers that have manufacturing of plant facilities, the big challenge is trying to ensure that appropriate social distance is maintained,” says Brunette. “But again, best practice is to go to the WorkSafeBC or the Alberta OHS website and check their detailed protocols.”

Before setting up these plans, employer should be asking if certain jobs can be done from home instead of the office “and trying to find ways to accommodate employees who can work from home,” says Brunette.

That could mean investing in staff tools at home if needed, he says.

“If they didn’t have a good computer at home or good printing setup, pay for it or offer incentives; [offer] allowances to get a home office.”

To assess the office’s suitability and safety, a number of questions have to be asked, according to Brunette: “Have you considered areas where people gather? Have you considered places where workers are close to customers or other members of the public? Consider entrances, exits, shop floors, that sort of stuff. How about vehicle transportation, how do people get to work?”

Set up a safety committee as well and think about common touchpoints and surfaces and other tools that workers may share, says Brunette.

When a potential infection from COVID-19 occurs in the workplace, employers have to spring into action, he says.

“First step would be isolate that worker, ensure they’re at home and they’re taken care of from that perspective. Your next move is do some close contact tracing; figuring out within the workplace whom might that person have had close contact with, and then ensuring that those close contacts are also isolating for the recommended period of time.”

Keeping in mind privacy concerns once an infection has been confirmed, other workers who may have been in contact will have to notified, says Brunette.

“You want to keep the individual’s name anonymous; you will want to alert people, for example, that if you’ve got people on the 15th floor, they are notified. That area should be subject to some enhanced enhance cleaning immediately.”

As well, make use of technological tools to monitor employee health daily, says Brunette.

“[It’s about] having employees fill out a daily record — I see a lot of use of apps — having employees respond if they’re attending premises every morning; they’ve got to log on to the app and confirm that they’re not suffering from any symptoms.”