Five Good Ideas ®
Five good ideas about re-opening your workplace post COVID-19
Published on 26/05/2020
In this session, Robyn Osgood, Managing Director, McMillan Vantage Policy Group, and Dave McKechnie, Chair, Employment & Labour Relations, McMillan LLP, discussed their five good ideas for organizations to implement as we think about re-opening our workplaces, including re-examining how we work and implementing lessons learned over the course of the COVID-19 crisis.
Five Good Ideas
- It’s chaos, be kind (learn to embrace the chaos while sweating the big stuff)
- Level up: it’s (past) time to upgrade (and it’s not just about technology)
- Figure out what’s worked and hasn’t worked (and who it is that makes the determination)
- Know your team: what will it take for people to work in an office
- Hold up a mirror: do as you say
- Presentation slides (PDF)
- Returning to Work: Is Your Organization Ready? (PDF)
A three-point Return-to-Work Health Check to help associations and not-for-profits navigate the new normal
- McMillan Lawcasts
Archive of webinars to help you and your team stay current on the latest legal developments (note: free registration required)
- Edited online chat transcript
The video, text, podcast, and transcript are provided for general information purposes only. They are neither intended as, nor should be considered, legal advice and readers, viewers and listeners are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted. © McMillan LLP 2020.
Full session transcript
Elizabeth McIsaac: Good afternoon, everyone. My name is Elizabeth McIsaac, I’m the president of Maytree. We’re a private foundation dedicated to creating solutions to poverty. We believe that the most enduring way to fix the systems that create poverty in Canada is to safeguard economic and social rights. This is the focus of our work, but we also believe in strengthening the capacity of our sector.
One way to do this is through our Five Good Ideas program, so for those of you who are joining us for the first time, welcome to Five Good Ideas. The program features subject-matter experts who discuss concise, action-oriented ideas, five, that relate to key management issues facing nonprofit organizations.
Normally, we hold monthly sessions in Downtown Toronto, and offer a livestreaming option for those who can’t make it in person. Of course, now things are different, and like most of you, we’re working from home and have moved Five Good Ideas online as a Zoom webinar. So, welcome, and thank you for joining us this afternoon.
Let’s begin. While many of you are dialing in from across Canada, I’m speaking to you from Toronto. I would like to acknowledge that I am 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.
In the last while, I don’t know about you, but certainly everyone I talk to is talking about going back to the workplace. This is increasingly the conversation, when do we go back? It may still be some time away, although we have people joining us from across Canada, so we might have people in different positions, but whether or not we’re going back this week, next week, or in a month, we’re starting to think about what this might look like, and many of us have already started to plan what that’s going to look like when we have staff back in the office.
There is no question, our workplaces are going to be transformed by what we’ve gone through, and may continue to go through. Increasingly, the talk is about a second wave. So we thought it was appropriate to invite Robyn Osgood and Dave McKechnie from MicMillan LLP to share their five good ideas for organizations to think about as we start to reopen our workplaces.
Robyn Osgood is a managing director at McMillan Vantage Policy Group. She has almost 30 years of experience providing strategic communications counsel and developing and implementing communications plans. She has worked extensively with NGOs over that time, and we’re delighted to have here, welcome, Robyn.
Dave McKechnie is the chair of employment and labor relations at McMillan LLP. He practices in all areas of labor and employment law at both the provincial and the federal level, and we are delighted to have Dave here as well, so, welcome Robyn and Dave, and over to you, and I will come back when it’s time for questions, thank you.
Robyn Osgood: Thank you so much, Elizabeth. David and I are thrilled to be here as part of the Five Good Ideas Maytree Foundation webinar series, and before we get started, I thought I’d just do a little framing of the content that we’re going to present, and Dave is in control of the slides, so I’ll try not say ding too many times throughout this webinar, but if you can go to the next slide, excellent.
Really, this is about opportunity. If you cast your mind back, our collective minds back to about two months ago, the world, of course, was a very different place, and those of us leading organizations have spent much of the past two months reacting, trying to keep our employees safe, trying to shore up financial resources, trying to make sure that we are responding appropriately to government requirements and public health requirements.
It’s been a very stressful time, and it’s been a very intense time, and now as we talk, as Elizabeth said, we start the talk about return-to-work. We have the opportunity to be proactive, to start to imagine what the world of work could be and that’s such a rare opportunity. What Dave and I hope is that the ideas we present today, both practical and we hope a little inspirational, will help you as you navigate the complexity of what return-to-work looks like for your organization.
Dave is going to speak first, he brings a wealth of knowledge and a legal background. I bring a communications background. I’ll rejoin you near the end of the presentation, but I’ll turn it over to Dave to start.
Dave McKechnie: Thanks, Robin and thank you to Maytree for having us as part of this session.
As Robin mentioned, I’m going to talk to you about some of the practical considerations on returning to work. The content of this format isn’t really as legal as it might normally be in a return-to-work webinar, and there’ll be a link for you to look at for something our firm has put together.
I’m on the nuts and bolts, but this is Five Good Ideas, ideas that we want you to be thinking about as you begin your return-to-work planning.
The mantra I’ve had is it’s chaos, be kind. That mantra was Michelle McNamara’s mantra. She was a true crime writer, who really helped put together the case against the Golden State Killer, and what a wonderful book; but she had this blog – she was trying to make sense of a lot of the files and a lot of the facts that she was dealing with: she had this idea, if it’s chaos, be kind.
As we come into this new world, we have to appreciate that. All of us who are able to do so are working from home, and we know what some of the Internet lore is. We know the children interrupting a news broadcast. Some of you may have read about the Snopes called the toilet flush around the world in a recent Supreme Court of the United States hearing. And there’s all sorts of articles about the failures, the accidents, the embarrassing stories that happened when people work from home.
But that’s really going to be the reality for a lot of us over the next several months, and if the second wave comes, that Elizabeth was talking about, and most people expect it will be, this is going to be a reality for those organizations where you can have people working from home.
So, one of the things we’ve all noticed is the collision of the personal and the professional. How we used to work, the images we used to present, the way we used to interact with both colleagues, clients, other organization partners, it’s changed, and so as you think about coming back to work, I want you to think about embracing the chaos.
Get used to this. I’m broadcasting to you from Haliburton, Ontario, from literally the top of my dresser, that’s what I have to work with and that’s fine. You may hear my kids shouting from outside in the hallway, as they are dealing with their homework, and working through a Zoom class on their own. Guess what, it’s fine.
So embrace the chaos but think about the big stuff as an employer, don’t worry about these interruptions, don’t worry about people in T-shirts on a Zoom call.
Worry about confidentiality. What do your policies say? What kind of practices have you instilled in your employees about the confidentiality of information? Think heavily about privacy, both on the IT side, what are you protecting, what systems do you have to ensure that if you’re engaging with a client intake, if you’re an organization that’s dealing with something in the public and you have to have that first session over Zoom, what privacy stops and stopgaps do you have to ensure that that conversation is both protected and that the person you’re talking to feels like it’s protected?
And obviously, we’re all concerned about productivity, and I’m going to return to that in a little bit, but understand how you’re going to measure productivity. It’s one of the big challenges. So, this is sort of on the work-from-home, but, when you think about other issues of commuting, of reopening your workplace, of redesigning your workplace so that social distancing happens, you’ll embrace the chaos.
Understand that we’re going to have to have a lot of empathy, both towards our employees and towards ourselves, in terms of how our operations are going to run, and when you think about what you’re going to do, you have to think about the on-site challenges.
All these things are coming at us very, very quickly. We have, start with the what we saw yesterday, the new discussions about face masks. You have all sorts of differing opinions that come in from public health, that come from very provincial ministries, that come from health and safety organizations. Your employees are reading them, you’re reading them.
Robyn will speak about how you do communications, but when you thinking about whether we should bring back people, whether we should have them return to site, this is just a short list of what you have to consider, and so really, is it worth it? Is it worth it to have and reopen the workplace and have to deal with all of these new issues?
There’s an article in the Star this morning that talked about how elevators in large office buildings are going to work and everything’s going to change, and it will. It’s going to be chaos, so be kind. What do you really need? When you come back to the workplace, what do you really need?
And as you think about the return, I also want you to think about this concept of level up, and for those of us who play video games, we’re well used to this idea that the more skilled, the more experience you have, you increase, and that can be true, but we’re all going to see a different set of skills emerge for both productive employees and for how we run our organization.
Before this happened, a lot of lawyers were well used to taking clients out for lunch, were used to organizing large events. That isn’t a thing that we can do anymore, and so, if you had somebody in your organization who says look, I cannot reach out to donors without having a personal engagement with them, I’m not sure how we’re going to fundraise if we can’t have the large dinner. You have to stop and now think about, okay well, what skills do we actually need to promote in our employees, and how are we going to train for that?
So what do you need? That’s going to be a large-scale review. That’s not just physical workplace, that’s talking about skills. Who is going to be most confident in delivering your services for your organization? Who’s comfortable speaking in front of a camera like this? Who can pick up a phone to reach out to donors, to have a sale? Who’s going to be able to talk to clients in a way that’s both comforting when you’re dealing with the technology?
As you think about those skills, what do you have in the employee population? Who’s going to be falling behind?
Technology has always been a big barrier for some employees. My seven-year-old now knows how to run a Zoom call beautifully. You’re all used to using Google Classroom, Google Forms. If a seven-year-old can do it, really anybody can. It’s about getting people over the hump of technology as a barrier and using it, really now as the tool that we have to use to communicate, and to form our work, and as organizations, you can’t just set your employees adrift because you may have really good employees that you want to retain, but you know that they need a skills upgrade, so what are you going to do to fill the gaps?
And, the way I think about it when I think about my folks is this kind of a character build. Now this is a screenshot I pulled down from the Internet. I have no idea what game it is, but you can see, you can adjust these skills, leadership, tactics, and empathy, self-control, and management. You level up, you get people focused and understand and how you rate, maybe, your managers are on these kind of values and these kind of behaviors.
Now, I’m not sure honestly on this screen why drunkenness is a value. I don’t encourage that, you don’t want your employees to level up in drunkenness or anger, but this concept of leveling up is going to be very useful as we try to think through: what is our organization going to look like for the next three months? What’s it going to look like in the fall if we have to have a second wave? Are we prepared for that as an organization?
I mean, we all pivoted to working from home, to being sort of technologically adapt, within a matter of a week, so it’s possible. The whole concept of like no, there’s just absolutely no way we can have people work from home is out the window. So now you have to live with that, and you have to adjust, and that means looking at all of your policies about working from home, looking at all of your accommodation policies, understanding what has to change.
So you’re leveling up both as an organization, and you’re helping your employees to level up. Some of the values that I’ve been thinking about of what we’re going to need. They’re not new, but the emphasis is going to be different.
Most importantly, you need to have an employee population that’s flexible and able to adapt, both from a technological perspective, both from how we interact with our own team members. We need to be able to really change a lot quicker than we used to.
Similarly, resilience, this has been a trying time for everybody and anybody who says oh, this is great, I’m fine, is really probably hiding something. For those of us who are parents, we’re now both teaching, trying to do our work, and running a high school, it’s a huge challenge.
That being said, being able to figure out how you’re going to promote resilience, both on your employee population as an organization, when you’re dealing with funding pressures, when you’re dealing with lease issues, corporate funding, governmental funding, everything that you used to take for granted could disappear, so as an organization, how are you going to build in safeguards so that you are resilient when these sort of situations arise?
Empathy is huge, it wasn’t something that was talked about a lot, at least when I was coming through the ranks as a junior lawyer, but it is a very valuable skill for leaders to make sure that you’re getting the most out of your employees and understanding how they need to work.
Teamwork and leadership really go hand-in-hand. The best leaders are those who can work well within a team in my view.
And, finally, creativity. We have all sorts, a myriad of problems that have come up as a result of this pandemic. We can’t have people just say look, no, I can’t do it that way. It doesn’t work. We’ve certainly had examples in my profession where lawyers who are well used to having big team meetings within an office, who think that’s the only way we can have a free exchange of ideas, well, we can’t, and so, if that lawyer then says okay, well, I can’t do it this way, that’s not going to work.
So those employees who are creative, and those organizations that engage and encourage their employees to be creative, are going to be much better suited to withstand, whatever is coming next.
So the final good idea I want to talk to you about is the lessons learned. The last two months, I think we’re in week 10 now, though I appreciate time has lost all meaning. Most of us have learned what works and what does not work, at least given the situation we currently have.
As you start to think about opening up, don’t lose those lessons. I cannot tell you enough that you’re not going to be able to go back to how things were. Manufacturers who run 700-person plants producing auto parts, they’ve had to adapt. They can’t just say okay, well, everybody, back on the line, it doesn’t work. So you got to take the lessons that you’ve learned from these last 10 weeks, and obviously, going into the future, and apply those to your organization.
And I was listening to President Obama’s commencement address, and while not directly on point, it did speak to me that, “with so much uncertainty, everything is up for grabs, and this is your generation’s world to shape.”
So, as an organization, like I said, we can’t simply say well, in February of 2020, this is how we ran, and the emergency orders are now lifted, so guess what, this is how we’re going to run again, because it’s not going to work. You’re going to lose buy-in from a lot of your employees who said well, wait a second, that really wasn’t so bad, and that worked for me better, and so you have know how to be flexible, you have to understand what things worked, and what didn’t work. And also, you really have to think about who’s making that determination.
If it’s a top-down approach, if your C-suite, your managing directors, your executive directors are saying this is how we’re going to run this organization, it’s an approach I don’t think it’s going to work anymore.
For all of my clients who have addressed these return-to-work issues who either because they are now opening up, or they are about to, they’re not doing it from the executive level, they are doing it from across the employee population, they’re using surveys to figure out what the barriers are. Who has child care, who does not have child care? Schools are closed in certain jurisdictions. They’re not closed in other jurisdictions. Who’s dealing with elder care? Who’s dealing with people who are immunocompromised? What do we actually need? Do we need our full office space? Can we reduce our office space? Can we do shift work? Can we make people work from home Sundays, come in other days?
So, who is making that determination is a really big part of buy-in, as you think about opening up again.
Now, the big question that I get is productivity. This was the mantra, nobody will be as productive if there are working from home, and you really have to sit back and question that.
Now, you may have seen a drop in productivity over the last 10 weeks, you also have to wonder, was that a ramp-up? Do you have people with particular situations that cause that drop of productivity and can those be worked around? Did you actually have a loss of productivity?
Speaking for myself and our office, no one is commuting. So we are certainly finding that there is a lot of people who enjoy working from home for the bare fact is that they’re not driving 20 minutes to the GO train station, taking a 40-minute GO train ride, getting on the subway and coming out. They’re not losing an hour and a half, three hours out of their day and commuting time.
There’s also not this sort of what I call the loose interactions, the kitchen, the lobby, the hallways, going downstairs, nobody’s going out for lunches anymore. There is more productive work time available, and so one of the big challenges in this new world, as we deal with people who might be on-site, may not be on-site, is how do we measure productivity?
And what I really think is, that’s mostly about your ability as a manager. So, there are new models that are coming out. There’s new software available, particularly in the United States, that is detailed time-tracking. So you’re measuring mouse clicks, you’re measuring what programs are opening, you’re measuring login, login times.
It’s pretty invasive, and you known, depending on whether you can get through on privacy legislation, or whether you can get through unions, maybe that is something you implement, but that to me is sort of the last resort. There are so many other tools you can use without going to installing software, to check what everybody is doing online at all times.
Doing daily tasks reviews, what has to get done? Getting check-ins, having the basic trust that you need to have from your employees that you’re giving them assignments that are appropriate, that can be managed within the timeframe that you have.
These are not new things, but there’s things that come to the fore, again, think about leveling up. How your managers communicate what the expectations are. Making sure that they are clear on deadlines. Making sure they’re very clear on what the task is.
Again, this is something where you, as leaders of our organization, may have to assess. Do I have the right management team in place? Do they have these kind of skills to give honest and frank assessments to be clear about their expectations with the staff? So that we’re confident that the time is being put in properly, that we have the right resources we need and that people have the right tools that they need when they’re at home.
I’m going to transfer it over to Robyn now to speak to the last two good ideas.
Robyn: Excellent, thanks, Dave and hi, everyone, again. Dave has talked about some of the very practical considerations about work-from-home and return-to-work, because for many, return-to-work will mean staying exactly where you are.
Regardless of which approach you look at, knowing your team and understanding your team is so crucial. When we talk about resilient organizations and organizations that manage their way through a crisis like this, it really is those organizations that can instill confidence in their employees and have a strong corporate culture, and that culture is anchored with strong internal communications.
When we look at what you want to say to your employees, and what they need to hear around return-to-work, the sweet spot in the middle is really the strong communications function that can support your culture, guided by your guiding principles and core values, making sure that the organization’s activities line up with what you say – that’s kind of a summary of the magic sauce that is the basis of a strong internal culture.
Knowing your team involves activities. Knowing your team means listening and we all know that as leaders of organizations. But it is surprising to me, the number of people who listen without asking questions.
So, we’re all in meetings, we all do one-on-ones, we all have many Zoom calls, but what kinds of questions are you asking your staff and your employees about return-to-work?
And one of the very simple activities that you might want to try is a start, stop, keep activity. What should we start doing that we hadn’t had the opportunity to do before? What should we stop doing? Maybe there’s something we haven’t done in the past two months that really no one missed? What should we keep doing? Something new that we’ve done in the past two months that we should keep doing?
All-around engaging your employees around what the organization looks like, how we continue to live our mission, serve the communities that we’re serving, how do we reimagine work? What does that look like?
And knowing your team and what their concerns are, and where their worries are, what they’re thinking, it goes a very long way to engaging them to building confidence, so that you have a confident group stepping back into the workspace, if that’s what return-to-work looks like for you.
How else can you know your team? There’s all kinds of research available, publicly available research, this is one example. Abacus Data, near the beginning of May, looked at what it would take for people to be confident working in an office again.
If that’s what return-to-work could look like for your organization, and like so many research studies, you’ve got two ends, two polarized ends and some information in the middle.
So at one end are people who are already comfortable. They’re fine to walk back into an office, no problem. At the other, people who are quite nervous, and won’t be comfortable working in an office space until there’s a vaccine. But in the middle, just over 70% are people who are happy to walk back into an office but with conditions. And those, as you can see, four out of the five conditions relate to safety.
Safety is really going to be the coin of the realm. Organizations that have not had any subject-matter expertise – which is most of us I think – in health and safety, are going to have to know what sources to turn to, what professionals to turn to, because that’s the information that your employees need. They need to feel confident, they need to feel safe walking back into a work space.
I find really interesting that the fifth component there is around trust. Do I trust the organization for whom I work to have my best interest at heart? And that trust, again, is at the core of confidence, which is at the core of a healthy organizational culture, so that everybody can continue to focus on your mission, on making meaning, on your purpose.
One thing that happens with a crisis, I like to say it’s kind of a cleansing light, it’s a harsh light. In many ways if you have elements of your culture that aren’t working well and weren’t working well before, those cracks are so exposed during a crisis and if you have elements that are working well, those come to the fore, and this kind of information, understanding your team and understanding your employees, and what their concerns are is really important to establishing that strong culture.
The next one is some information from the Edelman Trust Barometer. I’m sure many of you are familiar with it. I found this one interesting because it really speaks to something we’re seeing throughout this pandemic, which is a shift in expectations on the part of employees and staff around the kinds of information that they should get from their employers.
So, safety is absolutely one. Not just how am I going to be safe in the workplace, but how do I prevent spreading the virus? How do I avoid taking it into my home and back to my family? Again, it’s probably the case for most of us unless you’re a public health organization, that this is not your area of expertise.
However, it’s important for us as leaders of organizations to recognize that this is the kind of information that our employees are looking to us to provide.
Expectations have shifted. We are, as employers, right up there with government organizations and public health officials, in some latest research I saw, as sources of trusted information. We have to take that responsibility seriously and provide information about government programs that could be accessed for our staff.
How do I help educate my child from home? How can I entertain them online on the weekends?
We’re working with clients that provide all this kind of information, not as the direct source, but with links to other subject-matter expertise, it really is interesting to see that shift in expectations.
Part of effective communication is also being an effective leader at communicating and that means being very honest with ourselves as leaders of organizations, holding up that mirror, how do we communicate and how are we connecting with our employees?
We are not the only people, clearly, in our organization who are communicating, but we do set the tone as leaders, and I’d like to show who we are seeing emerging as effective communicators, leader communicators during this pandemic.
As a sidebar, I think it’s terrific that the women, so many of the public health officials are women, and they are being lauded for their effectiveness here in Canada on guiding us through this very difficult time.
So you see there are two politicians, two public health officials. Really, these principles of effective communication, and Dave referenced them earlier, compassion leading with empathy, I mean the reality is we’re all adults, we’re all in this together, it could not be more true, we are all living the stressors of upended work lives, private lives that have been upended as well, our kids are home, we may be worried about parents and loved ones in long-term care facilities.
There’s a lot of stress, we need to, as leaders, lead with compassion and empathy.
Transparency’s so important because, again, the people who work with us and for us are adults. Let’s treat them that way, show them the data. Show your employees the data upon which you’re basing some very tough decisions.
I mean in this sector, in the not-for-profit sector, which has seen the bottom fall out of fundraising. I’m sure you had to make difficult decisions already, and will have more to make, and showing the data around which, or based upon which those decisions are made is really important.
It’s a very realistic picture you’re painting for your employees, your donors, your funders, and your supporters, but as you see here, realism needs to be balanced with hope. It isn’t sufficient at all to send the negative message that some realistic data will present. It needs to be offered with the hope, we will get through this, you’re a strong team, we’re a strong team, we will get through it and here’s how.
And engaging your folks around what return-to-work looks like could be the first of several engagements around what the new world of work looks like, what your organization looks like, and how it’s shifting.
And, finally, consistency. You will get tired of saying the same thing over and over again far before anybody gets tired of hearing it. The importance of being compassionate and transparent and providing hope and realism is underscored by the need to say that kind of thing over and over and over again.
So many messages coming at your employees, so many messages coming at your donors and funders. It’s important to be consistent and clear when you’re communicating with them.
There is, ironically, opportunity in uncertainty, and I hope that Dave and I have presented some ideas this afternoon to give you some food for thought. We’re very happy to take your questions.
Elizabeth: Perfect, thank you so much, Robyn, and thank you. Dave.
It’s certainly prompted, I think, a very vibrant conversation in the chat room, and a great exchange by ideas of how people are dealing with different elements and aspects of figuring out what to do around return-to-work, and then also, it had to deal with some of the specifics.
A couple of questions that have already been logged in the question and answer section and we’ll start there. This is one that we’re dealing with and trying to think through is that public transit is one of the big risks and perceived barriers for people returning to work, and considerations as we look at who we asked to come back to work and what we’re asking them to go through to get to work. What are some of the considerations that the heads of organizations should be working through as they consider that?
Dave: I’ll give a couple of thoughts from the labor and employment law of perspective. I’m an management-side lawyer, so I’ll start there and just say how your employees get to work legally is not your concern. You’re not responsible for their health, and safety as they commute into work. That’s not a great answer though to your staff, and so you need to think about how can you manage the workplace so that you’re lessening those concerns, and it’s going to be obviously, organizational-specific, but some of the ideas you can have is whether you need to have people commuting on every single day, whether you can change that so that they’re in the office two days a week. You can think about whether they need to be there at eight o’clock to nine o’clock in the morning, which is the peak commute time.
You can, as Robyn mentioned, mention some of the strategies that the employees could use to mitigate their risk. You all saw that yesterday again with the face masks. Mayor Tory, for those in Toronto, he suggested that if you are going to be taking public transit, then it is a good idea to wear a face mask, since social distancing is so hard when you’re doing public transit.
But from another perspective, we do think about public transit, but we also have to think about our organization set-up, are we in a location where employees, if they choose, could drive to work. Similarly, and again, I’m thinking about our office building in Downtown Toronto. We did not have a lot of space for cycles, cyclists, if they wanted to walk their bike up when they were coming into a large-scale office building. That’s going to switch, as people move away from potentially public transit for the near future.
So, there are lots of strategies and communications that employees, employers can do, around sort of commuting to work, but it’s really going to have to determine, first, we got to get the work done, we all know that. So, what could we do to make employees feel safe and that we are trying to adjust the workflow, work space to accommodate their concerns?
Elizabeth: a related question that some people will struggle with in terms of the return-to-work, if they’re one of the people that are going to be asked to come back into the office, is the uncertainty of child care going forward. So that if an office begins to repopulate, and you’re wanted to be back, but in fact, you now have nowhere to send your children, to school or summer programming or daycare, then as an employer and responsibility in terms of offering work, how does that get taken care of from the point of view of employment law?
Dave: So from the employment law perspective, you have two conflicting issues. One is, well, none are really conflicting, but two issues.
One is the duty to accommodate, so employers subject to human rights legislation across Canada have a duty to accommodate on the basis of family status, and human rights tribunals would probably be more willing to take on policy issues, that are dealing with a combination of both child care, and elder care, as we start to open back up again.
The other is you have statutory legislation, I’m thinking in Ontario specifically, under the Employment Standards Act that provides for indefinite leave during the crisis, during the emergency orders, for those who don’t have child care, where the schools are closed, we normally would be facing a summer where kids were going off to camp. That’s now done, at least in Ontario, the camps are closed, the City of Toronto will greatly reduce their camps, so from a legal point of view, you know you have that accommodation issue.
It doesn’t again mean that you just have to put people off work. There are ways to still get productivity out of people. Again, just understanding that they’re going to have moments of chaos, we don’t schedule any meetings or seminars around 12 o’clock anymore because all of us are making lunch for kids, and so if you want to get me on a call at 12, I can’t because I got two kids we got to feed.
So, it’s trying to make those kind of arrangements and just being cognizant that some people are going to struggle if they need to get back to a physical workplace and then they’re going to struggle, even remotely.
Elizabeth: I have a the following question: my leadership team colleagues believe remote working is more efficient than I think it is, I’m concerned about efficiency, as well as effectiveness, 20 emails doesn’t stack up against a 30-second hallway conversation. Any ideas on how to enhance effectiveness and efficiency of remote workers?
Robyn: I think there are a couple of ways to look at that, and one, I know this is going to sound silly, and maybe it’s my age, but pick up the phone. I can’t tell you how many times I’ve had to say to younger colleagues, just pick up the phone because the phone actually does that. Like I know it’s a camera and all those other things, but it actually is a phone, and I agree that there are some things that are much better handled in the 30-second chat than 21 emails back and forth.
I think it’s also important as leaders to set expectations. There is, depending on the kind of organization that you have, it’s important to think of work as impact rather than work as geography, and so we do this work so we can have an impact on the communities that we serve.
I’m thinking in particular of NGOs because I’ve done so much work with them, and I think that’s everybody who’s on this call, is in a not-for-profit or NGO space.
Let’s measure impact and not the outcome, not the outputs, and not worry as much about that.
Now, I know that may be a bridge too far for some folks who are a little more old-school, but we’re really in a new-school era. Like we’re all working from home, it seems to be working for the most part, fairly well, there are always bugs to work out, but I think when you look and it is important to be concerned about efficiency and effectiveness. But if you’re clear with your expectations as a leadership team, you know what your objectives are, that the spot on the mountain that you’re trying to reach, that’s what you’re aiming for.
How you get there, I think, requires this new way of thinking, more trust in your teams to find their way there, and to turn to you for help when they need it and for you to be able to identify when you need to provide help. So I think it’s part of a larger conversation to be honest.
Elizabeth: What are your thoughts regarding when employees request provision of PPE [Personal Protective Equipment]? Is this an obligation of the employer? And as we’re getting ready to go back, some people going back into the office, or agency, or wherever, how ready do we need to be getting right now?
Dave: So you need to be getting ready now. I’ll deal with that question first. Waiting isn’t going to help anybody, and so right now, even if you’re not permitted to open a physical space, you need to think about what’s going to happen when you do open a physical space.
In terms of the provision of PPE, you, as an employer, you have an obligation under the Occupational Health and Safety Act to make sure that employees are working safely. The problem we have right now is the number of voices that are coming at us from official sources and unofficial sources about what that means.
The Ministry in Ontario, I’m an Ontario lawyer, so I’ll speak to that first, and just so people know, PPE is personal protective equipment. So, sorry for the short-hand, but, in this context, PPE mainly talks about face masks. It can also talk about plexiglass if you’re client-facing. For anybody who’s been to a grocery store, an LCBO, you see the plexiglass barriers that have been put up to protect employees. So that might be something that you’re sort of thinking about, but really, for the most of the PPE we are talking about gloves and face masks, and so, do you have an obligation to provide that?
The answer is maybe, I know it’s a lawyer answer, but it’s true. If you do have people where if you have a workplace where you’re going to have interactions and social distancing is impossible, then providing face masks is taking reasonable steps to protect the health and safety of your employees. You then have to figure out how you’re going to source those face masks, we know that using N95 face masks is frowned upon heavily because those should be reserved for people in the healthcare sector, but using face masks for people who, where you just can’t have that social distancing, that’s required, at a bare minimum, you certainly want to think about providing hand sanitizer, doing all the various steps for hygiene, and for cleansing the workplace.
Robyn showed that slide about what people are concerned about: wipe downs, all that kind of stuff has to be thought about, and it has to be thought about now, because one of the big challenges employers are finding is ordering the stuff. Sourcing PPE, we’ve read about in the news, but it’s a true, it’s a trying time, if you’re trying to do that for your workplace.
Elizabeth: This one is on mental health, and I think this is really important because I think everyone has experienced, or is much more aware of their own mental health during this period, and it’s becoming acute for many. Staff are asking our organization to support them with their mental health, we have an EAP, we share that regularly with them. We have offered to pay for a three-part webinar series on managing mental health. We have provided 37.5 hours of additional pandemic leave and have provided with links to external resources. Our employees are saying this isn’t enough. I know health and safety regulation does loosely talk about mental health, what are our obligations as an employer?
Dave: So again, management-side employment hat, you’re doing amazing. So, my communication to those employees would not be terrible or kind, as a management-side employment lawyer. The reality is you don’t have a legal obligation to proactively talk to about people’s mental health. You have an obligation to make sure you workplace is safe.
That means how you measure work, how you assign work, how you distribute work, how you organize your workplace. Can’t be done in such a way that you know it’s going to impact their mental health. People have stressors all the time. People go through divorces, they lose child-custody, they have traumatic accidents, traumatic incidents in their personal life. As an employer, that’s not your obligation.
So again, from a management-side hat, whoever’s organization is doing all those steps, that’s everything that we would recommend that a great employer do, and it goes above and beyond your legal obligation, subject to whatever obligations you may have under a policy or a collective agreement. So, legally, I get to be in a good seat at this point and just say hey, you did it, you’re done. Robyn, I don’t know if you have any other thoughts on what else employers could do to support mental health during the time?
Robyn: Yeah, I agree that the organization that asked the question sounds stellar. I mean, to do all of that, it could be also though, it’s not only something to do, it’s something to be seen to be doing. And so it could be that groups of employees aren’t aware of the extent. They may be not aware of the good intentions, which I think, I know that legally, good intentions probably don’t count for very much, but when you are communicating with your employees, I think leading with your values and to say that keeping our employees health, mental health and wellness in mind is important to us. That’s an important message to convey and then demonstrate how you’re doing it.
I would be surprised if the majority of the people in that organization are feeling that that’s insufficient; and if they are feeling that way, perhaps there’s a larger or different issue, and that having a discussion with those folks would make the difference. But conveying through your values how you are living your values as an organization, engaging employees in that conversation, even if they don’t end up agreeing with the decisions that you’re making, being clear and transparent, about how you’ve made decisions about the level of effort, or investment I should say, you’re putting into mental wellness, I think, again, treating employees as adults and saying here’s how we based our decisions, and here’s what we’ve done, I think could go a long way.
Elizabeth: So related to that and perhaps agree that that’s an organization’s doing a lot of great stuff. Where employers are not doing enough, where it’s clearly that’s there’s perhaps not the basics that we would expect, the cleaning the distancing, the availability of masks, and things like that, the question is who should we inform if we feel that the employer is not taking enough measures to protect their employees?
Dave: So from a legal perspective, employees always have the option of contacting the Ministry of Labour, and then if there’s a concern about health and safety in the workplace, the Ministry can send out an inspector and I know the Ministry has stepped up inspections for open workplaces right now to determine if there is social distancing being practiced, and all the other good things.
Obviously, if it’s a unionized workplace, your first stop is to your union. That is your only stop, to be honest, is to go right to the union because they’re in charge of filing any kind of grievance that you may have, and so, legally, those are the two places from a non-legal perspective, an employee group to sort of raise the concerns, is usually the best way to get your leadership’s attention.
That being said, if you want to be convincing to an organization, you better be able to back it up, and by that I mean you better be able to point to an official source and not a Twitter handle, as to what needs to be done in the workplace. So if you can look at the Ministry of Labour’s website, and say look, here are the five recommendations. You’re not meeting any of them, then that’s going to have a lot more weight, than I read that we should be doing X, Y, and Z.
Elizabeth: That’s a great segue to a previous question I was looking at, which is: are there any websites with some of the requirements around COVID. Are there other nonprofit sources out there for reopening and reengaging our communities? Apparently, the road to retail recovery playbook was distributed by the Retail Council of Canada. Are there other like resources that we can look to for guidance on what that kind of distance looks like in terms of desk space, what kind of hand sanitizer access, or gloves or masks we need in the workplace? What is the standard that we’re trying to achieve?
Dave: So again, legally, it’s going to be province-specific. The Ministry of Labour does have resources available that also are supported by the Public Service Health Agency, PSSH, PSHA, that again, have a number of recommendations and the one thing I guess I want everybody to understand is there is a difference between a recommendation and a requirement. So requirement, from a lawyer, is what are we legally obligated to do by statute? And there is so little that’s going here under statute right now, under the Occupational Health and Safety Acts. It’s really about what the Ministry is recommending, and to be honest, that’s what you’re going to have to follow, so look at your various Ministries. BC, I know has also done some good, WorkSafeBC in putting out things, so has Quebec, but be a little cautious about what you’re required to do versus what’s sort of recommended to do.
Elizabeth: Okay, we’re going to do one more question. This will be my question that kind of combines some other comments, and it’s to you, Robyn. You talked about trust as one of the five conditions. I thought those conditions were really helpful about people feeling uncomfortable returning to work. What makes this, what’s going to make it okay? Apart from constant communication, are there other elements around building that trust between the employer and the employee to really both bolster that? Because as we start to make these plans and proceed toward the next stage, it’s going to be so critical.
Robyn: I agree, so yes, communication. But don’t always think of communication as like a hypodermic needle that you put the information in and out it goes to your staff. That’s not probably the best way.
Conversation is the best way and conversation requires that you will do something as a management team with what you’re hearing, even if you don’t do anything with it. And by that I mean, let’s say you have a town hall or a discussion one-on-one and people have ideas and suggestions, you need to let folks know what you’re going to do with that, what the process is.
I think though, the other thing that we see from clients is that sometimes the good intentions of trying to engender trust and build trust between management, very good intentions between management and staff, gets undercut by the most unlikely of things.
So as an example, there is real and meaningful dialogue about what return-to-work could look like. Who is returning, who are the crucial, what are the crucial roles, that kind of thing. And then everybody does that, there’s this initial week of reopening the office, and then for the next three weeks, you don’t see the executive director. You don’t see the CFO or you don’t see the CIO because they’re working from home again, and all of the good intentions around what you say that you want to do and the decisions you come to in conjunction with your employees get undercut because of a behaviour that folks hadn’t really realized.
Having an organization behave in the way it says it wants to behave is so important, and I think when you’re engendering trust, and trying to build trust in a very difficult time. Having communications as an operating principle at the core of your decision-making team, if you have an executive team of two or three, and one of those people is not the head of your communications, you’re probably missing out because that person will help remind you about when a decision you make may run counter to what you say. And it’s that alignment that’s so crucial to creating trust with your employees.
Elizabeth: I think that was a fabulous way to end. Thank you so much, Robyn, and thank you, Dave. This has been just a tremendous session. I know from that from the chat side and the 19 questions we didn’t answer we could’ve gone on for another two hours. So on behalf of everybody online, thank you, that was absolutely terrific.
Thank you to everyone who joined us. Wonderful to have you and have your comments and questions.
This transcript has been lightly edited for clarity.
Robyn Osgood is a Managing Director at McMillan Vantage Policy Group. She has almost 30 years of experience providing strategic communications counsel, and developing and implementing communications plans. She has worked extensively with the NGO sector over that time.
Dave practises in all areas of labour and employment law at both the provincial and federal level. He advises and represents employers with respect to employee hiring and dismissal, wrongful dismissal claims, disability management and benefit issues, workplace accommodation, harassment, employment standards, employment contracts, employment policies, human rights, grievance arbitration, negotiation and administration of collective agreements, workers’ safety and insurance and Canada Labour Code unjust dismissal complaints. Dave also has experience in relation to employee and retiree benefits class action claims.
Dave represents clients in front of various labour tribunals, including the Human Rights Tribunal of Ontario, the Ontario Workplace Safety and Insurance Appeals Tribunal, employment insurance appeals, employment standards hearings and at arbitrations and mediations. Dave has also regularly appeared before the Ontario Superior Court and the Ontario Court of Appeal.
Dave is a member of the firm’s business immigration practice, and advises clients on all aspects of business immigration, including labour market opinions, intra-company transfers, professional applications and permanent residence applications for economic class immigration and provincial nominees.
Dave is a graduate with honours of Swarthmore College in Pennsylvania. Prior to joining McMillan, he worked as a litigation clerk at Thompson Coburn LLP in Washington, D.C.