Without a doubt, the last three months have been something our organizations have never experienced. It feels like we have been in a continuous state of pivoting our plans, approaches, and services. Needless to say, the impacts on our work environments and team dynamics are many.
As we each establish the ‘new normal’ as we return to work, how do we navigate the impacts and changes to our work environments?
On June 16, 2020, we convened Jonathan Bennett, Founder and Senior Associate at Laridae, and Kalen Ingram, Lawyer at Cunningham Swan Lawyers, to answer your questions about how to promote a health workplace culture during COVID-19. Valentina Kibedi, Consultant at Laridae, hosted the lively discussion.
You can watch the recording of the webinar, or read transcript below (lightly edited for clarity).
Poll: What is your most pressing issue currently?
Valentina Kibedi (VK): Jonathan, what do you think about these results? Surprising or consistent with what you have experienced?
Jonathan Bennett (JB): Consistent with what he has been hearing. We’re seeing a mixed bag with what folks are facing right now.
People are concerned about how to safely return to the workplace. Lots of non-profits have done a lot of work to adapt and lots of innovations have taken place. However, in spite of these innovations, organizations are still not feeling like they are still not able to do their best work. There is a sense that returning to the workplace is going to be really important.
Actively communicating and staying engaged while working remotely is going to be new for a lot of places, so it’s going to be a bit of a trial by fire. On the other hand, leaders have been surprised by their staff’s ability to adapt to new processes.
We spend a lot of time helping managers and leaders manage the performance of their staff. We’ll be talking more about that later in the webinar.
VK: Kalen, are you hearing similar things?
Kalen Ingram (KI): Yes. Even as we begin to return to the workplace, many workplaces are implementing longer-term remote work arrangements and trying to figure out the best way for that to unfold, so that projects and services can continue to move forward.
A key word for today is “communication”. It can help leaders avoid a legal battle that could ensue if there is a breakdown in communication. Ideally, you want to be able to work out key things ahead of time with your staff by setting ground rules and expectations as well as clarifying how you will do performance management.
A key word for today is “communication”. It can help leaders avoid a legal battle that could ensue if there is a breakdown in communication.
Common pitfalls of managing remote workers
KI: For remote work arrangements, it’s important to clearly communicate the structure:
- What are the expectations in terms of productivity? Hours of work?
- How are you going to track hours?
- When do people need to be available?
- Are you going to have daily check-ins?
Insurance, confidentiality, and security are also things to consider
Ultimately, it’s important to get input from your staff about what they need to have in place in order for the new arrangement to work.
How managers can best support their staff
VK: A question for Jonathan: What can I do to additionally support my staff through this time? What is different? What stays the same?
JB: Organizational values should stay the same, and this is the time to revisit them. Take another look at how your values impact the way your organization behaves. Your strategic plan may have lost some focus during this time. You may have had documents to effectively guide them in the past. Now that things have changed, values will help to find clarity.
Organizations that are doing the best right now are building from a place of trust. They’re recognizing the challenges their employees are facing and designing new ways of working. This includes setting realistic expectations and creating accommodations based on the circumstance.
It’s important to know that people are watching. The extent to which you support your staff during this difficult period, and the extent to which you show you trust them to be successful, will be remembered. This is an opportunity to build loyalty.
Poll: Which of the following have you experienced during Covid?
Accommodation vs. undue hardship
VK: Kalen, can you discuss the rights of employees when they identify a personal issue such as childcare or anxiety related to Covid? What’s the line between accommodation and undue hardship for organizations?
KI: Lots of employers are dealing with employees expressing concerns over returning to the workplace. The Employment Standards Act (ESA) was amended to introduce a new leave of absence – an infectious disease emergency leave – which is available to employees if they have childcare obligations arising from daycare or school closures. Additionally, childcare matters may engage the Human Rights Code, which prohibits discrimination based on a variety of prohibited grounds, including family status.
If a worker asks for accommodations due to child obligations or a personal medical issue, organizations may have a duty to accommodate. In this case, you would follow your normal accommodation process – gather input from the worker, consider the operational needs of your organization and determine what, if any, reasonable accommodations might be available.
The Federal Government has also suggested that it will be introducing legislation that if an employee refuses a reasonable job offer, they will no longer qualify for CERB.
In regards to undue hardship – this is the limit of an employer’s accommodation obligation. An employer is not required to implement an accommodation if it will impose an undue hardship upon the employer. Undue hardship is only a factor if the Human Rights Code is engaged.
When to ask for legal advice
VK: At what point should a situation go from a discussion with an employee to seeking legal advice?
KI: It depends on the situation, but proactive legal advice can be provided to avoid a dispute. Be sure to look out for “flags” from your employees. For example, if someone is saying they can’t come to work because of childcare, they may be entitled to an ESA leave or an accommodation pursuant to the Human Rights Code. If someone shares that they have a medical condition, it could engage the Human Rights Code.
Employees may be refusing work on the basis that they feel it is unsafe. This could engage the Occupational Health and Safety Act which sets out a process to be followed if a worker refuses work on the basis of unsafe working conditions.
Creating a strong workplace culture when working remotely
VK: Jonathan, what can employers do to maintain a positive workplace culture in remote working arrangements, especially over the long term?
JB: Look at how your teams communicate and function. You may have had success with hour-long team meetings in the past, but after a few months of Zoom, it might not working the way it used to. Now that employees are working hours that better suit them, managers may feel that they’re losing control.
Through our training and our coaching, we’re encouraging managers to rethink the way they’re communicating. For some workplaces that could mean shorter and more frequent meetings, or creating transparency in decision making.
Now that workers are home, they’re not benefitting from those natural in-person moments together. Communication needs to be recreated with intention, and expectations around performance needs to be adjusted. It will take some time to get really good at this.
JB: Organizations are moving from an “urgent” to “important” zone. It’s easy to tell yourself that there is too much changing right now to plan. But the fact that we don’t know what the world will look like in 18 months is precisely the reason why you need to plan. If you have no end goal, you’ll reach an unknown place.
It’s easy to tell yourself that there is too much changing right now to plan. But the fact that we don’t know what the world will look like in 18 months is precisely the reason why you need to plan.
The act of engaging your teams through planning for the future helps them reconnect to their purpose. Employees may feel demotivated because the fun part of working was engaging with colleagues and clients. When they feel detached from that, it’s important to reconnect to the purpose through planning.
Liabilities of returning to the workplace
VK: When thinking about reconfiguring the workplace, what constitutes a safe workplace?
KI: The Occupational Health & Safety Act states employers should take every reasonable precaution. This is an opportunity for your joint Health and Safety Committee to shine. Involving workers in policy creation can help managers uncover issues they weren’t aware of. Asking questions like:
- What are the risks in our workplace?
- Where do we come in contact with other people?
- Where are the high-touch surfaces we should be aware of?
- How can we address these risks?
Be sure to assess risks and put in reasonable controls for those risks.
This is an opportunity for your joint Health and Safety Committee to shine. Involving workers in policy creation can help managers uncover issues they weren’t aware of.
Do reduced hours mean reduced pay?
VK: Kalen, when an employee says they can only work reduced hours due to family obligations, are employers still required to provide full-time pay?
KI: If an employee is unable to work or requires reduced hours due to family obligations, they may be entitled to that ESA job protected leave or an accommodation under the Human Rights Code. Employers are not obligated to pay full-time wages if the Employee is only able to work part-time hours. There are job protected leaves and new government benefits that offer protection for workers who find themselves in this situation.
The Ontario Government released a new regulation under the Employment Standards Act that offers some protection for employers in situations where the Employer is required to reduce staff hours and wages due to the pandemic.
In these cases, a reduction in hours and wages would not result in a statutory constructive dismissal. It also means a layoff due to COVID will be considered a “job-protected Employment Standards Act leave.” This applies to the period of March 1st to 6 weeks after the end of the State of Emergency in Ontario. Each situation is different; contacting a legal professional will help to address these concerns.
Maintaining a positive workplace culture during layoffs
VK: Jonathan, how can organizations maintain a positive workplace culture after and during layoffs?
JB: Be as transparent as you can. A lawyer can help you work through what you are and aren’t allowed to say. What you can share is your intention going forward. Active communication throughout the period is essential.
As a leader, you may go through the emotional toll of layoffs on your own, and by the time you connect with your staff it’s over for you. But it’s still news to them, and you owe your team the opportunity to go through these feelings so they can come out better on the other side.
Does everyone need to return to work at the same time?
VK: Kalen, if we have layoffs, do I have to call everyone back at the same time?
KI: No, many employers are implementing a phased return-to-work. Normally, a layoff lasting longer than 13 weeks would be deemed a termination. The Employment Standards Act Regulation I mentioned earlier gives employers more time to return people to work.
Employers should consider having a documented rationale for returning people to work on the schedule that it did to avoid allegations that the return to work plan discriminated against a certain class of workers. It would be considered discriminatory to leave older workers or workers with underlying medical conditions on layoff longer than other workers. There should be an operational rationale for these decisions.
Hope for the future
VK: Jonathan, what are some hopeful things to come out of Covid?
JB: I’m hopeful for many reasons. Many non-profits are discovering all kinds of flexibility within their workplace, and that the restricting factors they thought they had were actually standard processes. Organizations are asking themselves if they’re doing things in the right way and if their systems are working.
Additionally, having to work remotely has often reduced bureaucratic steps and created efficiencies. Organizations outside the GTA have been able to attract great people, especially in back office services like IT, finance and HR.
I’m hopeful for many reasons. Many non-profits are discovering all kinds of flexibility within their workplace… Organizations are asking themselves if they’re doing things in the right way and if their systems are working.
VK: Kalen, any parting words as they move through this process?
KI: We went through a tough couple of weeks of advising clients through the layoff process. While these conversations were difficult, it was encouraging to see business owners and organizational managers who were and continue to be genuinely concerned for the well-being of their workers. They are calling us wanting information on how they can put their staff in the best possible position while also doing what is necessary to maintain their business or their operations. This was really encouraging.
About the Panelists
Kalen Ingram, Lawyer at Cunningham and Swan LLC
Kalen Ingram is a Senior Associate with Cunningham Swan’s Labour & Employment group. Kalen provides proactive and strategic advice to employers from across Ontario on all matters relating to labour and employment law, including:
- Employment contracts/policies
- Claims and litigation relating to terminations
- Human rights, Ministry of Labour & WSIB proceedings
- Regulatory charges including charges under OHSA
- General operational matters (conflict, remote work, leaves)
- Labour Arbitration
- Privacy matters
- Collective Bargaining
Jonathan Bennett, Founder and Senior Associate at Laridae
Jonathan Bennett provides sought-after strategic counsel to leaders, executive teams, and boards across Ontario. He was Laridae’s CEO for its first eight years. Jonathan is now solely focused on leading client projects and training as one of the firm’s Senior Associates.
Jonathan’s expertise is in:
- Strategic Planning
- Governance & Board Coaching
- Change & Workplace Culture
About the Host
Valentina Kibedi, Consultant at Laridae
Community development and partnership building have been at the heart of Valentina’s career. With over ten years’ experience, Valentina has held progressively senior roles in the non-profit and media sectors—including four years at the YMCA of Greater Toronto. At Laridae, Valentina leads a range of strategy, facilitation, and planning projects, and provides project management expertise on large and complex engagements. With a passion for supporting mission-driven organizations and asking thought-provoking questions, Valentina supports Laridae’s clients to develop customized, actionable strategies.