Five Good Ideas

Five Good Ideas about creating a successful hybrid workplace

Published on 28/09/2021

COVID-19 forced employers and employees to adapt to a virtual workplace. More than one and a half years into the pandemic, many employees don’t want to go back to the old ways of working, and employers are looking to find ways to create a hybrid workplace where their staff can work in the office as well as from home. Neena Gupta, partner, Gowling WLG, presents five good ideas about some of the legal, compliance, and HR issues you need to consider to make your hybrid workplace a true success.

The video, text, podcast, and transcript are provided for general information purposes only and are not legal advice. You should consult your own lawyer about your specific needs and requirements. © Gowling WLG (Canada) LLP.

Five Good Ideas

  1. Survey your people
  2. Review your physical workspace
  3. Review your employee’s remote workspace
  4. Decide on your vaccination policy
  5. Draft your remote workplace policy

Bonus ideas

  1. Re-SURVEY the workplace
  2. Invest in mental health
  3. Reconsider pay

Resources

Examples of surveys

Sue Bingham, “To Make Hybrid Work, Solicit Employees’ Input,” Harvard Business Review (July 29, 2021)

Public Health Ontario, “Heating, Ventilation and Air Conditioning (HVAC) Systems in Buildings and COVID-19

Canadian Centre for Occupational Health & Safety, “Telework / Remote Work / Working From Home,” (fact sheet)

City of Toronto news release, “Toronto Medical Officer of Health strongly recommending Toronto employers institute COVID-19 vaccination policy and support workplace vaccination

KPMG, “Work from home… work from office… or both? – A Hybrid Workplace guide to successfully build and manage a flexible future of work”

Communitech, “Get back to work[space]!

Government of Ontario resource

Government of Canada resources

Gowling WLG

Podcast


Full transcript

Note: The transcript has been edited for clarity.

Elizabeth – While many of you are dialing in from across Canada, I’m speaking to you from Toronto, and I’d like to begin today’s session by acknowledging the land where we live and work and recognizing our responsibilities and relationships where we are. As we are meeting and connecting virtually today, I encourage you to acknowledge the place you occupy. I am, and Maytree is, on the historical territory of the Huron-Wendat, Petun, Seneca, and, most recently, the Mississaugas of the New Credit Indigenous Peoples. This territory is covered by the Dish With One Spoon Wampum Belt Covenant, an agreement between the Haudenosaunee and the Ojibwe and allied nations to peaceably share and care for the lands and resources around the Great Lakes.

COVID-19 has forced employers and employees to adapt to a virtual workplace. More than one and a half years into the pandemic, many employees don’t want to go back to the old ways of working, and employers are looking to find ways to create a hybrid workplace where their staff can work in the office, as well as from home.

In this session, Neena Gupta will present her five good ideas about some of the legal, compliance, and human resource issues you may need to consider to make your hybrid workplace a true success.

Neena Gupta is a partner at Gowling WLG LLP, where she has a broad employment and human rights practice. She’s also co-chair of the firm’s diversity and inclusion council. She has been frequently recognized for her work, including the 2017 Zenith Awards recognizing women in the legal profession and the Queen Elizabeth II Golden Jubilee Awards for her service to the legal profession. For her full bio, plus her ideas and resources, please download the handout in the chat. It’s now my absolute pleasure to welcome Neena.

Neena, thank you for joining us and over to you for five good ideas.

Neena Gupta – Thank you very much. I hope everyone can hear me.

There’s a joke that the reason why people become lawyers is that they’re not particularly good at math. That is definitely true of me, because I tried to limit my presentation to five good ideas and then I realized that I couldn’t do it. So, what I’ve gone and done is to call my presentation Five-ish Good Ideas.

I will start with a bit of a legal disclaimer: I am a lawyer called to the province of Ontario’s bar, but I’m not giving you legal advice. There is a legal underpinning to many of the ideas we’re going to discuss today. And if you’re looking to implement things or you have specific legal questions, I really encourage you to reach out to your lawyer. I really think that your lawyer should be like your best friend; somebody you trust to keep secrets and give you good advice and link you to good resources. If there’s something specific and you want to reach out to me at the end of the presentation, I’ve left some contact information and also some good resources.

So what are my five-ish good ideas for a successful remote workplace?

Some of these ideas are pretty self-evident. I’m claiming no creativity. The first good idea is talk to your people, survey your people. The second idea, which may not be as self-evident, is review your physical workplace. If people are working in a hybrid or remote space, you actually have to review your employees’ workspace.  One thing that’s very controversial, but is definitely on the front pages of our newspapers in Ontario, is deciding on a vaccination policy for your in-person workplace, and then drafting a remote workplace policy. I have some other ideas and some resources that, if we have time, we will definitely talk about.

First of all, survey your people. Ask your workplace about return-to-work. It is really important to open up a conversation. Now, just because you asked the question, that doesn’t necessarily mean you have to comply with everybody’s wishlist, but it’s really important to understand what the interest is in returning to the workplace.

What we have found, not only in our own workplace, but also through working with other clients, is that there’s really a divergence in the workplace. There is a small minority – about 15% – of jobs that people can do remotely, like lawyers and accountants and actuaries and consultants, who actually miss going to the office. And I would put myself in that category. There’s a much larger group –  probably over half your workplace; maybe even 60 or 70% of your workplace – that really is looking for hybrid. Hybrid is also code for flex-time or flexibility, and we’ll talk a little bit about that. Finally, there’s people who never want to darken the doorstep of your workplace. Some of them simply want to work from their dining rooms. Others may wish to be global warriors and go on a beach in Costa Rica or an Airbnb in Greece. And as long as they’re doing their work, they feel that they should be able to work remotely from whenever and wherever. Now there are some issues with these global nomads, and I don’t know that we’ll have a chance to talk about the tax and insurance complexities of global nomads, but it’s something that you should think about.

Some questions you need to really understand: What do people really like about working from home? What do they miss about working from the office? What is their preferred optimal mix? I am fundamentally someone who is lazy and I do not like reinventing the wheel, so I’ve offered you some resources that can inspire you to create a proper survey for your own workplace.

It’s useful to communicate to your workplace what people are thinking. You need to be sensitive, of course, to the fact that some jobs probably can’t be done remotely. It’s very difficult to be a clinic worker seeing patients, perhaps a receptionist, or a counselor that has a large population that does not feel comfortable with technology. But to the extent that jobs can be successfully transitioned remotely – and we’ve had an 18 month experiment, so you know what can and cannot be done – you should really be thinking about how your new workplace is going to look like. And just in case you think this is just my idea, full credit to Sue Bingham, from the Harvard Business Review, who essentially said soliciting employees’ input on your hybrid work is a key component to making it work.

The other thing that you need to look at is your physical environment. In Ontario, we anticipate having limitations on capacity and six feet distancing requirements for at least the next quarter, if not the next six months. And this leads to real issues about what does your workplace look like? How are you going to space your work stations? I know that in the tech sector, where I often work, it used to be a point of pride that people would work on – to have three or four employees working around – what is effectively a dining room table. Well, that day is gone.

How are you going to deal with spacing requirements? I’ve put in some suggestions. Again, nothing particularly creative, but they’re useful. Staggered start times put less pressure on elevators and staircases. Reduction of capacity, like having fewer workers in the office. Some workplaces I see have done things like, cohort A will be in the office on Monday, Wednesday, Friday; cohort B Tuesdays and Thursdays, and then switching them around the next week. It could be week one or week two. Again, trying to keep up with the requirements of social distancing.

The other thing that I recommend is increasing the number of hand sanitizing stations throughout the workplace, so that you have more opportunities to comply with public health requirements. Some workplaces have increased their cleaning, not just in the evenings, but during the day. There’s a certain amount of comfort that employees get from seeing thorough cleaning, especially spaces like washrooms where – even though, to date, touch points are less likely to be a source of infection than aerosols or breathing in the virus – seeing somebody clean work stations, clean bathrooms, and touch points makes a real psychological difference.

One thing we haven’t necessarily talked about as much is ventilation. Ventilation is clearly a key component. We hear stories of people living in apartments where they share a ventilation system getting COVID through the ventilation system, even though they’ve maintained a six-feet distance apart. You may have to consult with your landlord. Many in the not-for-profit sector don’t own their own buildings, or may have to add portable ventilation. Although you’ll see public health saying, “Open windows,” I haven’t worked in an office where I could open the windows for about 30 years. And so that advice isn’t particularly useful, and we may have to look at things like artificial HEPA filtration in order to increase ventilation and increase air purification. I’m not purporting to be an HVAC specialist; I’m encouraging you to consult with your landlord regarding how good the ventilation is. There are filters that can be back-filled into existing systems that may help.

Part of this is what people call “hygiene theatre”, which I think is a disrespectful term for reassuring your workplace that you are taking every step that is reasonable to keep them safe, because people don’t feel safe, and they’d be insane to feel safe when 27,000 Canadians have died and the death toll from COVID, depending on what article you read, is like a four and a half million to possibly as high as 18 million worldwide. So people need reassurance and that’s a human need that we, as employers, can help fulfill, if they see us look at the physical environment, the physical space.

Let’s assume for a moment that all of us are really interested in having a bit more flexibility in our lives and in giving our workers more flexibility. It means that they’re likely working from home. What is that going to ask you to do? Well, working from home is not a panacea. I’ve been stuck in my dining room for, far too long, and it requires reliable internet. And reliable internet is a luxury and I didn’t realize that until I moved to my present location, which is a farm just about three kilometers from the city borders. As soon as I went those three kilometers, I actually lost access to city internet, and was now on satellite or rural internet. What a difference that made. I mean, we start talking about things as simple as laptops. Or you can have docking stations, because unplugging and re-plugging and getting your whole setup is such a nuisance. We’re talking about chairs, because I can tell you my kitchen chair and my dining room chair weren’t good enough. Desk, ergonomic mouse, keyboard. And then this setup that I now have –  which is my headset, my camera, my microphone – none of which I really had when we started working from home on March 16th, in which I’ve learnt: Yeah, I had a great setup. Because anytime I presented remotely –  which was indeed rare because most lawyers present in person, law society events are in person, HR events are in person, and got us out of the office, it was one of the joys of meeting people –  but none of the setup that I had on a day-to-day basis was good enough, and there is an economic cost to all of this. And I know this sounds like it is a first-world problem, but if you’re going to be working over Zoom or other video technology, having a clear crisp image of who you’re talking to and being able to hear them as if they’re really in your room psychologically makes a huge difference. These are some of the things that I don’t think we thought about pre-pandemic.

As a lawyer, though, I think of one thing: confidentiality. My work is extraordinarily confidential: People confide in me things as delicate as sexual harassment complaints, possible employee theft, employees who are transitioning from one gender to another, and what if the only place to work in a small apartment is in the dining room where the children are doing homework, and the spouse is also working. How are you going to deal with confidentiality? And, in my work, there are certain things that have to be printed out. If I’m going to be proofreading a large document presentation or a grant application, sometimes I print it out. That can be very confidential or have confidential financials. How are you going to dispose of shredding? My inexpert solution was literally to have a confidential shredding box, which I then schlepped to the office on weekends and put in the confidential shredding pile that we have, but is there another way that’s going to work?

The tools that worked at the beginning of the pandemic or even at the end of the year were actually not adequate as we started to do more and more. So having routine check-ins –  like checking in for people’s morale, checking in on workload, checking in on how they’re feeling, and adding a question, “Do you have the tools you need? Is there anything else you actually need to work?” It’s a really important question. I’ll give you a trivial example, but it wasn’t so trivial. One of our law clerks was also being a full-time mother and a full-time employee and she couldn’t get out to buy paper to print out or needed a printer. So those are the kinds of logistical nightmares some of your employees are facing, and it’s always a good idea to check in: “Is everything working?” IT has been crazy busy, but it’s still a good idea for managers to do that.

I want to congratulate somebody who’s saying, “How do you protect the privacy of employees when they are using their personal cell phone, like I do for business?” And you don’t necessarily want all clients to have that [number]. Is it going to be some kind of virtual voice-over-internet phone solution that you’re going to use for your workplace? I’ve given you some resources at the end of this slide. The CCOHS, which is an organization I often refer people to, is the Canadian Center for Occupational Health and Safety. They have some excellent hints on ergonomics that I would commend to you as a takeaway.

My fourth idea, and I don’t know if it’s particularly a big idea or not, is I think you’re going to have to face the question of your vaccination policy, at least in Ontario and definitely in the GTA. I find it very interesting that Dr. De Villa, the medical officer of health for Toronto, strongly recommended that each workplace actually have a vaccination policy. And she had an example of a vaccination policy, which was, essentially: Vaccinated, provide proof of vaccination, or do education, and perhaps a rapid test. I’ll talk a little bit about vaccination policies later.

As of September 18th, 80% of the population, the adult population, or population 12 and over, are fully vaccinated. And if you look at that as a population in Canada, 70% of the entire population is vaccinated. So the vaccinated group are definitely in a majority. And the reality is that vaccinated people are much more comfortable if others are vaccinated, too. Essentially, there’s a sense of, “If I, as a vaccinated person, vaccinated myself for my own health, my family’s health, and the health of my community, I want everybody else around me to be vaccinated, too.” And what are you in the workplace going to do?

Some workplaces don’t have a choice. In Ontario, certain segments of the healthcare, daycare, long-term care sector have to be vaccinated. In Quebec, there’s a similar policy for similar sectors. But what if you’re a law firm? Like, what is your vaccination policy going to be? And this is a very controversial question, because up until this point in time, in general, in living memory – I’m getting old so I’ve got over 30 years of work experience – your vaccination status, unless you were a healthcare worker, was completely a private, personal medical choice. And now employers who may not be in a medical or quasi-medical setting are asking difficult questions regarding, “Well, what is your vaccination policy?” “What is your vaccination plan?” I don’t think too many of us, however, are going to be able to be neutral about this.

The expectation, especially if you’re going to expect people to come back to an in-person workplace, is going to be (for at least the 80% of the adult population that are vaccinated) that you’re taking care of that issue for the rest of us. So, on your vaccination policy – and this is not a vaccination policy presentation: You have to start with, What are you legally required to do? And the most common policy is what I call a vaccination or a test, rapid antigen test. And this is financially feasible only because the Government of Canada has funded free rapid antigen tests. And they are usually distributed through the local chambers of commerce. Interestingly, you do not have to be a Chamber of Commerce member to get the free kits. You just have to be someone operating a business in the geographic area of that particular chamber of commerce. And the testing that’s required is usually two times a week.

A refusal to vaccine, if there is a reason for it – and we’ll talk a little bit about what the reasons could be – but a refusal to subject to vaccine or a refusal to get a test may well be – and, I say, may well be –  grounds for suspension without pay or termination. But, if you’re going to do that, please consult your lawyer. Remember how I said your lawyer should be your best friend? Never, never take a negative step against an employee on the grounds of a vaccination or on the grounds of a failure to test without talking to your lawyer. I am anticipating to be busy for the next, oh, I don’t know, one-to-three years because of human rights complaints relating to vaccination or test or vaccination policies. There are some vaccine education resources if you want to encourage people to be vaccinated.

I like the “vaccine or test” policy, because at least it allows an individual to be able to work. But I recognize that other workplaces may have a preference for a strong mandatory vaccination policy.

Under the human rights laws of Canada, and I want to exempt Quebec a little bit because they have a very interesting and different regime, but in the English-speaking common law provinces, exemptions typically are limited to strict medical exemptions or sincerely held religious belief or creed. Now, what are the medical grounds? It should be evidenced by a health care practitioner within the scope of practice. Now, what does that mean, scope of practice? So, scope of practice is that you’re essentially regulated to do a certain kind of work. Earlier on in this pandemic, I did see some notes from chiropractors saying that this individual ought not to be vaccinated. Now, I can’t speak for all the provinces, but in Ontario, the college of chiropractors has made it very clear that chiropractors are not licensed to deal with immunology or vaccination.

So, chiropractors are not to be giving notes about whether someone can or cannot be vaccinated on medical grounds. You want a doctor, a nurse practitioner, and possibly a registered nurse to provide a note and, if you’ve read The Globe and Mail, or the College of Physicians and Surgeons of Ontario website, the Ontario Medical Association, the Canadian Medical Association, it’s very clear to me that they’re looking at narrow grounds and the grounds are allergies to the particular vaccine ingredients, and the particular vaccines that we’re using now, or a possible response to the first vaccine dose that was very adverse and therefore they don’t want to do a second vaccine –  those are really real. I want to assure you that I know of people in my own circle who are not anti-vaxxers who have had reactions, and so they were not able to take a second vaccine.

Some experts do not consider the rapid antigen tests to be a good substitute for full vaccination, but it is a choice that many employers are making. And one thing I would ask is that, if you’re thinking about some kind of vaccination policy as you hire new people –  not existing people, new people –  or if you’re promoting people, make those vaccination terms explicit. Just like employment might be contingent on proving that I can work legally in Canada, that I have a law degree from a recognized university, that I am called to the bar in Ontario, you might have a term saying that I am fully vaccinated.

Creed is sometimes very difficult, but you are allowed to ask questions about, Well, what is the basis? “I’m a member of a certain religious group. Our belief is X system.” I ask for a note, if possible, from a leader in that community. Beware of what I call “instant notes.” There are some churches that, if you pay them , will say you’re a member of this church in some city in the States or somewhere else and our belief is that vaccination is wrong. I think you can push a little bit on the sincerity of that belief. Which came first? “I don’t want to have a vaccine and I’m looking for justification.” Or is the person a member of that religion and really sincerely believes that to exercise their religion they ought not to be vaccinated.

Then you have to draft your remote work policy and it’s a work in progress. And you have to think about it –  I mean, this is really hard, but who’s going to be eligible to work from home? Are you going to have some core dates, times, events, or people just have to be in the office? I mentioned the idea of groups, sometimes to create cohesion, but also for physical spacing. And will you have bonuses for those who come to work regularly and physically? Are you going to incentivize showing up to work, which seems to be such a weird idea, especially if you have a pre-pandemic world view. That may raise, at least in Ontario, pay equity issues, because you may be paying somebody who’s coming into work more than people who are working from home. Is that justified under pay equity? You may have to revise your pay equity plan.

The one thing that I would remind you is remote work isn’t always what employees want. People say, “I want to work hybrid.” It’s not just the right to work from your dining room; it’s also the right to have flexibility. “Maybe I can show up at 7:30, work till 8:30, deal with my morning emails, get my kids out the door, work from 9:30 to 3:30, and then finish off my day after supper, after seven or eight o’clock.” Maybe that’s what your employees need to know. So, are you going to have core hours? How are you going to manage that?

I want to give you a cautionary note because this sector is female-dominated. I worry, as a female professional, whether hybrid work will actually harm women’s career progression. And there was an excellent article that I’ve linked to in my slides and my slides will be shared, so you will have access to it.

As for a remote work policy: Remember I said, “I never like reinventing the wheel”? I’m sorry for the ugly references, but both KPMG and Communitech have excellent templates and checklists to help you develop your remote work policy. I’m also giving you some vaccine resources for education that you might want.

Now, so you’ve done all these great things. It’s not one-and-done. You really need to resurvey the workplace to figure out how things are working and fine tune your policy. I also have to remind you that all the planning in the world will not be perfect, because people’s needs change rapidly. School started at the beginning of September. We already have two employees who were coming back to work, who now have to work from home because their child’s class shut down. And there’s another one who has an elder care issue. So we continue to have that duty to accommodate, but we also have to realize the pandemic is not over.

One other thing: Mental health is tough. I am congenitally a cheerful person. I have found the last 18 months tough, too. One in five Canadian adults 18 and over are screening positive for at least one of three mental disorders. That’s huge. So invest in mental health. Your people need you to take care of them.

I know it’s hard in the not-for-profit sector, but one in five Canadians are planning on quitting, unless there’s a pay raise. That’s a scary thought to every employer. And if you can’t do a pay raise, some of the other considerations, like flex-time and hybrid work or permanent work-from-home, maybe are things that you can offer that help incentivize people to stay at your workplace, rather than go elsewhere.

I realize I have run over time, but I did want to leave you with some resources, which are in the slides. Gowling has free COVID insights; I invite you to subscribe. I wrote an article about the pros and cons and legal risks of mandatory vaccination. I thought you would be interested in Stats Canada: In 2016, 4% of the population worked predominantly from home. In 2021, 30% of the workforce worked from home. A shout out to the Ontario government: They have created an upgraded COVID-19 safety plan tool that is really easy to use. So, if you created a COVID safety plan, maybe in early 2020, and you’re looking to upgrade it a little bit, this might be a great resource for you.

Katarina, I’m wondering if we have time for a few questions, because I know I did promise to take questions at the end of my presentation. Or is Elizabeth going to do it?

Elizabeth – I’m going to do it with you. That was absolutely fabulous. You’re not just bad at math, but you’re also an overachiever. That was absolutely fabulous. So many good ideas. So many great links and resources. I was taking notes like crazy and I know everyone else was as well, so that was just terrific.

We’ve got a bunch of questions, so you’re right, you’re not going anywhere just yet. And I’m going to start at the beginning of some of the early questions that go back to your first ideas around physical environment. And somebody asked a question around, “Do landlords have a responsibility to make sure ventilation complies with public health circumstances? Is that coming? And how do we sort of look at who’s responsible for what in that context?”

Neena – I’m not aware of a legislative requirement for landlords to retrofit their buildings to meet some kind of COVID-19 safety standard. Sometimes in the lease there will be language about, “The landlord will have a building that is properly maintained and fit for human occupancy.” But understand that landlords want to keep you as a tenant. This is an era where there’s a lot of space out there and people don’t want to lose good tenants. So having a conversation about what can be done in cooperation with your landlord is often very effective.

Elizabeth – Somebody asked an interesting question around people with accessibility needs: “Do you have any thoughts on how the shift back to the office may impact those with accessibility needs that may have been hired while the office was fully remote? Pre-pandemic, we all know that many people were met with ‘That’s not possible,’ only to find out it really was.” Is there anything unique or different or you were hired remotely and now you’re an employee and is there a greater requirement?

Elizabeth – The old rules still apply, Elizabeth. We still have a duty to accommodate. I really think that we should look at those questions one by one. Maybe we make an exception and that person only comes in for certain kinds of meetings. I’m not a real fan of the permanent remote employee. I think that those employees lose out on opportunities and career progression. We are a herd species, after all, and so somebody who is on Zoom, I think they lose out. But, we should be flexible. If you have a good employee who has a real inability to navigate the subway system in Toronto and to come to work on a daily basis, and has been doing a great job in your accounts receivable, accounts payable, maybe that’s a job that you decide to make permanently remote.

I do think we have to upskill our frontline managers. That was one of the ideas, Elizabeth, that got cut, because I realized, you might be able to sneak in eight and pretend you miscounted, but when you get to 10, that’s really hard. One of the hardest things I think for frontline managers and I actually count myself, because I have a team reporting into me and I’m sort of, I’m not a big manager at the firm, not interested, don’t like it, but I am a frontline manager. It has taken me more time to check in on my people. In the good old days, I’d see somebody walk in and I could see one person whistling with their coffee cup. Okay, they’re doing okay. I’d see somebody else dragging themselves from the subway. That person –  not doing so well. So, within about three minutes, I could tell where my team was. I can’t do that when I’m remote. I actually have to call them every day or every other day just to check in. That takes time and that takes mental energy, being that mental health support for the one and five, or, quite frankly, all of us that are struggling. And so we have to upskill our frontline managers to make that remote workplace really work for that individual who maybe we decide, “Stay at home. You know what? It’s going to work out. We’ll figure it out.”

Elizabeth – You’ve sort of segued into a related question: “How do we keep team morale and collaborative relationships up during a hybrid environment?” And then also recognizing that if there’s some people that are going back to work and others who are staying, how do we build those bridges? And, I mean, you’ve described a little bit of the sort of additional management touch, but are there other things that you’re seeing as good practice?

Neena – So what am I actually seeing is – you guys are probably better at this than I am because lawyers are not known as being fun people –  actually scheduling time to having discussions that have nothing to do with work. And so we did a Bring Your Pet to the Screen Day, Bring Your Kids to the Screen Day, Bring Your Kids’ Artwork to the Screen Day. Things that have nothing to do with work remind each other that we’re still human and present for each other as human beings.

To the extent anybody feels comfortable, and no social pressure, small outdoor gatherings. I know the season is about to end, but small outdoor gatherings. So, maybe it’s finding an activity in one of the parks and saying, “I’m going to be there, if you want to join me. No pressure, but it might be good to see somebody.” Not everyone’s going to be comfortable with that. I have colleagues that literally have pretty well not left their house, except to go on medical appointments. That’s it. That’s okay. I understand that. I respect that. But others might feel a little bit more carefree, especially now that they are vaccinated. I’m really encouraging people. It doesn’t have to be, in my view –  it does not have to be elaborate. It doesn’t have to be fancy or gimmicky. It’s just an opportunity to grab a cup of coffee and do something on a human level.

Elizabeth – I think that speaks a bit to the next question as well, but I’m going to share it because there’s more to what this person is asking: “I’m seeing a divergence among my staff. The four existing staff who’ve worked together in the office for many years are older. They have their own homes. They’re more inclined to work at home and supporting this facilitates our retention, so we’re letting them do it. The three new hires this month, all younger, in rental accommodation, seem to want to be in the office due to lack of suitable workspace. They want the environment. This has to be a recruitment consideration going forward. I wonder how best to manage this new dynamic so new hires benefit from the in-person relationships with existing staff, while giving existing staff more flexibility.”

Neena – We are facing that all over. Here I am in my lovely dining room. My son no longer lives here; he’s sort of off somewhere. I mean, I’ve got lots of space. What if I were living in a 400 square foot efficiency apartment in downtown Toronto, which seemed wonderful when I could go to parks and theaters, but not so wonderful if I’m going to work there 24/7, 365 –  actually, 500 and some odd days. And I think you’re going to have to grapple with expectations that people are comfy in the dining room like I am to say, “We need you back in the office. Our expectation is three days a week or two days a week. We’re going to do meetings Tuesdays and Thursdays. We’re going to have core hours. We realize you’re comfy out there.”

I realize Maytree has shared my materials, but, if possible, I saw a funny return-to-work video that I would love to share with the audience. I did share it on my LinkedIn profile. But, it’s essentially about how all of us are like the kids in kindergarten who don’t want to go to school that first day. And I think we’re all there. Change is hard when you get to a certain age and I am certainly in that age. But I think you’re going to have to say, “Look, one of the things we have senior people for is to be a good mentor. And you need to be here at least twice a week so our young people learn from you. And Zoom is great but it’s not as great as sitting over a cup of coffee and learning.”

Elizabeth – Absolutely. Okay, now we’re going to get into some vaccination questions, as I’m sure you expected.

Neena – I did.

Elizabeth – All right, so, “What if you’re a small organization that requires vaccination for in-person work or for meetings, but you will adjust the rule of staff who choose not to vaccinate? They’re not attending any in-person meetings and they’re continuing to work remotely. It’s going to be obvious to others what the reason is. How do you explain to the others why their role has been adjusted while still keeping their medical information private.”

Neena – Unless you are actually a healthcare practitioner, I’m less worried in Ontario about keeping the information private. You don’t have to say, “John Doe or Nina isn’t vaccinated.” That isn’t what you need to say. It’s just going to be, “This is how it’s going to be.” And if people draw the inference that Jane and Nina aren’t vaccinated, so be it. In Ontario, we have very weak privacy protections. I would caution people who might be listening in from Quebec, Alberta, BC, or who are federally regulated, to actually check the answer with their lawyer for those jurisdictions, because there might be some nuances there.

Elizabeth, that question actually raises a different question, if I could, which is the perceived unfairness. So, you have the people who are vaccinated, who are then saying, “Well, I’m being punished because I am being forced to come to work.” And the people who are not being vaccinated –  and some of those people cannot be vaccinated and we need to be clear about that. There are legitimate reasons why they can’t be vaccinated and are being rewarded by being able to work from home, even though you don’t want us working from home all the time. That’s the much more difficult question. And, quite frankly, I haven’t found a great answer for that. Those of you who are on the call who are HR directors who have great communication skills, if you’ve got a tip as to how you deal with that perceived inequity in the workplace, I really encourage you to throw it into the chat.

I see great questions and sharing in your online community, Elizabeth, so great discussion there and I’m really encouraging it, but I don’t have an easy answer for that perceived inequity issue.

Elizabeth – There’s another fairness question about who goes back and who doesn’t have to. What we notice is that those who have to go back tend to be administrative staff or more junior staff, perhaps because they may be client-facing or directly service-oriented, whereas those who have jobs that can be done remotely, people are kind of continuing. Are there legitimate concerns of fairness on that front?

Neena – You know, there’s the legal answer, which is, “Probably not.” And then there’s the HR answer. I think that when you have a good workplace, it’s a community. And I really have a problem where the most affluent, the most privileged in that community don’t show up, and don’t show physical solidarity with others in the community. I just don’t know how long you can keep that community.

As a law firm, it’s been made very clear to us, old geezers like myself, and I am one that wants to get back into the office so I want to make it clear: Like, I need the psychological separation. I have lots of room. This is not a room issue. I have dealt with my infrastructure issues, but it’s still the psychological separation between work and home and play. I really need it and I haven’t had it for 18 months and it has really impacted me. And so for that reason, I want to go back to the office.

But I also want to go back because I like my junior employees, and my entry-level employees, and my admin employees, and they are great people. And I want to show solidarity. So those of you who are leaders here, I think you’re going to have to show some leadership and maybe think about how we can make your workplace a bit of fun. My tip: I’m hosting a Diwali party at Gowlings Waterloo. I don’t know how I’m going to do it, but I’m going to do it. Well, if you’re staying at home, I’m sorry, but you’re not getting homemade samosa and sweets. So, there you go.

Elizabeth – Now there is an incentive. I love that incentive. I think that’s the right answer and it may not be legally binding, but it’s absolutely how you create a good workplace. I’m just going to note the time. We’re at 1:50. We’ve already gone over and there’s still a bunch of questions. We’re going to try to race through because some of them are quick “Yes”, “No”, and they’re good sharp answers that people want to take away. “Should staff with written medical exceptions after their first dose be taking the rapid test, as well? How often should those be taken?”

Neena – Yeah, I’ve heard different views. I’m not an infectious disease doctor. I’m the South Asian immigrant kid that failed and didn’t become a doctor.

Elizabeth – What a failure.

Neena – That’s a good question for your public health unit, because there might be different risks in different places, but I’ve heard two times. I’ve heard three times a week in certain sectors, but those are high risk sectors. Two times seems to be very common.

Elizabeth – Here’s a question from the point of view of workers’ rights: “What are the workers’ rights to refuse to return to the office, if safety measures at the workplace do not meet their personal standards and the levels of risk that they feel?”

Neena – I want to divide that into two questions. First of all, under all of our occupational health and safety, if somebody doesn’t want to come to work and we say you have to come to work, it’s a work refusal. And we know that there’s a process in each province of how to deal with the work refusal. You review the issues to see if there’s any legitimacy and you do it with an open mind, right? And do it with an open mind, not a reflexive no. If you decide, “Well, I don’t think it’s fair,” they can still refuse to work and ultimately the Ministry of Labour inspector will come and check. And I have to tell you, the Ministry of Labour, in general, has been supporting employers. So, subjective, hypersensitive fears have not been supported by the Ministry of Labour. That goes to the legal answer.

But let’s talk about somebody who has anxieties for legitimate reasons: a high risk, compromised spouse or child. Work with that employee. Maybe you give them a bit more latitude than you would ordinarily because we are afraid, and we’re afraid because we’ve seen 27,000 Canadians die. That’s a lot. And if you think that there’s five, six, ten people for each of those, there’s some who are mourning that person who are impacted. There’s a lot of our family and friends who were impacted either by the death or an illness and they’re afraid. So, we just need to be a little compassionate and patient. And this is the sector that does it, right? You know, Elizabeth, if there’s ever a sector that is built or equipped to be compassionate with vulnerable people, this is the sector.

Elizabeth – I agree. “If staff are moving to a remote role, do we have to update their employment contract for tax return implications?”

Neena – Generally, it’s a good idea to review your contract ever so often. That’s a different presentation, Elizabeth, but, in general, you should be updating your employment agreement when a role changes significantly. That’s just general good hygiene, best practices. But I do think you should, and, especially if they are moving out of the province, you absolutely have to, because there’s a different tax regime as soon as you move to Alberta or BC.

If they’re moving out of the country, you should be on the blower with your accountant. Your lawyer is your best friend and your accountant is your next best friend, because your accountant will tell you, “Well, that triggers some kind of tax remittance obligations to a foreign jurisdiction, and do you really want to do that?” And it’s a pain in the butt. But, anyway, I know workers who’ve done it, and I know companies who’ve managed it. It’s just taken a little bit of research to do it right. One throw away is worry about insurance coverage.

Elizabeth – That was my next question. It’s the next question in the chat. There we go.

Neena – So, we’re brilliant together, Elizabeth. Insurance that you buy, like your group insurance, has terms that nobody reads about, about limitations, about being away from the jurisdiction. There will be limits on out-of-country and out-of-province coverage. If somebody’s going to move out of the country, I’m not saying you have to pay for it, but you don’t want your valued employee –  who says, “You know what? I’ve always wanted to go back to India for a couple of months and work from home. Can you accommodate that?” – only to find out that he or she has no insurance. Make sure, if they’re moving out of the province, that you worry about insurance, because that could really impact your employee.

Elizabeth – Great, an accommodation question. I think you might’ve touched on this a bit in your presentation, but just to come back to it: “Is the organization required to provide staff with printers, paper ink, if they’re working remotely? How much are you supposed to be sending them stuff to do with that?”

Neena – I think that’s a conversation. If you’re going to make the remote workplace a semi-permanent arrangement, then I think the employer is going to have to bear the budget of making it so they’re effective at home. And you do not want to handicap your employee because you weren’t prepared to buy a $150 printer. Like, I’m not saying you’re buying the $2,000 HP high-speed colour printer that spits out a thousand pages an hour. But, you know, maybe you can get the $99 Canon or something and let them expense it through. You need to work with your IT because you want to make sure that there’s a certain quality and consistency throughout the system. Printers can be a source of loss of confidentiality and privacy. You have to think a little bit of this with the IT people as to what are best practices.

Elizabeth – All right, and I’m going to make that the last question because it’s 1:57. We promised to hard stop by two and I still have to say, “Thank you.” That was just terrific, you’ve covered so much territory, so many good ideas and just insightful, wise, and everything that we’d like to get out of a Five Good Ideas session. So, thank you, Neena.

P.A. Neena Gupta

Partner, Gowling WLG (Canada) LLP

P.A. Neena Gupta is a partner at Gowling WLG (Canada) LLP where she has a broad employment and human rights practice. She is also co-chair of the firm’s Diversity and Inclusion Council. She has been repeatedly recognized by Lexpert® and Best Lawyers® for her excellence in employment and human right law. She was awarded one of the 2017 Zenith Awards recognizing Women in the Legal Profession and the Queen Elizabeth II’s Golden Jubilee Awards for her service to the legal profession. She has taught at the Faculties of Law at both Queen’s University, Kingston and the University of Toronto.

Neena serves on the board of BioTalent Canada, an industry not-for-profit addressing the skills and labour shortages in the bioscience industries in Canada, the Literary Review of Canada and the United Way of Waterloo Region. She has also served on the boards of several corporations – both publicly-traded and private. She is a popular and informative speaker on a variety of topics and is a published author on matters relating to employment contracts, wrongful dismissals, human rights, and investigating harassment.

Neena is the mother to a wonderful son and is the “grandmother” to a 500-kilo horse, whom she considers her “fur grandchild.” She’s an expert at shovelling manure and calming nervous animals – skills that are directly transferable to her day job.