A challenging road lies ahead after a year dominated by the pandemic

By Tony Poland, LegalMatters Staff • After the coronavirus “wakeup call” to the business world, employers and workers would be advised to heed the lessons learned as 2021 unfolds, says Toronto-area employment lawyer and mediator Stuart Rudner.

“The workplace changed dramatically in the past 10 months and I doubt it is ever going to return to the old standard,” says Rudner, founder and principal at Rudner Law. “Some of the changes we have seen are temporary, but many will remain. The challenge going into 2021 is twofold. It’s about planning for the future, in a new reality while fulfilling the necessary daily duties and expectations.

“What will be really interesting is how that impacts the workplace.”

A new year can be a time for optimism, but it is essential not to repeat the mistakes of the past, he says.

‘Employment world is evolving’

“The employment world is evolving. I have been practising law for 22 years and at least 15 of those years were spent telling employers they need to ensure their contracts and policies are up to date. Many times, that has fallen on deaf ears,” Rudner tells LegalMattersCanada.ca. “In 2020, people realized those contracts and policies were deficient in numerous ways. Employers understand that is no longer an option if they hope to succeed.

“Last year was a reminder that both employers and employees are making mistakes because they don’t comprehend their legal rights and obligations,” he adds. “The message here is that people need to treat employment relationships as legal relationships and ensure that they understand what the laws say; that way,  they can put themselves in a stronger position and avoid costly mistakes.”

Rudner says while more uncertainty lies ahead there is some light at the end of the tunnel.

“With the evolution of the vaccine and, hopefully, the reduction of the number of people with COVID, we will move forward,” he says. “There is going to be a gradual return to something closer to normalcy along with that. You are going to see many workplaces that have to adapt to the new normal.”

Shutdowns inevitable

Given that COVID-19 cases continue to climb, shutdowns are inevitable, Rudner says, and remote work will remain a reality. As people settle into their home offices, some questions still require answers.

“There’s a renewed focus on flexible working arrangements,remote work and a work-life balance,” he says. “Some believe employees are not working as hard or not working as much when they are at home and there are other reports that suggest people are working longer hours, which is consistent with what I have seen.”

Rudner says employees often don’t mind putting in a little extra time because they no longer commute and there is some flexibility in the hours they work. However, with the additional flexibility comes a need for communication and clarity.

He says the typical workday has become more fluid, so employers need guidelines.

“It used to be very simple. You could say your work hours are 9-5 with an hour for lunch,” Rudner says. “That has changed, and the challenge is to ensure people are clear on expectations. I have seen many employers lately trying to make sure there are established systems in place.

“It’s really important to have policies or contracts that define the workday. Otherwise, it’s a recipe for trouble if you have someone who thinks they can take time off during the day while their manager expects them to be available.”

Guidelines to ensure employees are productive and happy is one part of the process, he says. Employers must also turn their minds to protecting their enterprise.

Securing confidentiality

“Businesses need to make sure their confidentiality is secure,” Rudner explains. “We lived through a year where many people worked on a laptop on their dining room table. That might be the same laptop their kids use to surf the internet. Companies who use the remote work model need to ensure employees are set up properly and safely. They need to protect their confidential information.”

Employers who keep their doors open should also be putting health and safety at the forefront, he says.

“We are currently in a lockdown but anecdotally and statistically speaking, we see that some people are not taking COVID as seriously as they did back in the spring,” Rudner says. “The consequences extend into the workplace. You have people who have been taking chances, not being as cautious as they should. They are going into the workplace where they risk exposing others and, as we all know, one case leads to many.”

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He says the rising virus numbers are a reminder to employers to ensure their health and safety policies are up to date. 

“These policies used to be focused on issues such as loose floorboards, harassment and those types of issues,” Rudner says. “No one focused on viruses and pandemics until last March. You are going to need to make sure you have really good policies in place.”

Understand workplace safety rules

Employers should also have a good understanding of the rules and regulations relating to workplace safety plans and coverage, including institutions such as the Workplace Safety and Insurance Board, he says.

“If somebody does get infected with COVID in the workplace, what happens? What do you do? What are the employee’s rights? How can they be compensated or are they even entitled to be compensated?” Rudner asks.  “All these things that few people thought about 10 months ago, we are now thinking about and hopefully people are putting proper policies and practices in place.”

With COVID vaccinations now underway, the debate has turned to whether employers can demand workers be inoculated.

“We are likely to hear about that for the next few months,” says Rudner. “Balancing safety rights with privacy rights is a constant tension we see in employment law. Some degree of interference with privacy rights will be acceptable in the name of safety. But only when it is justifiable and where there is no other way to achieve the same result that would be less intrusive.”

He says there are certain industries or roles, such as people with direct patient contact in  health care, where it is clear that vaccinations need to be mandatory.

“However, it will be difficult to justify it in all cases,” Rudner says. “Employers cannot assume that they can insist that all their employees be vaccinated. You should not expect to be able to demand it across the board. There is not going to be a clear answer for some time.”

He says there will have to be some guidance, perhaps at the legislative level.

‘It’s a process’

“We are unlikely to find a remedy in the courts because nothing happens overnight. It’s a process,” Rudner says. “Of course, even legislative amendments can be challenged in the courts, so the debate could be a long one.”

While 2020 was a trying year, he praises employers who were able to quickly adapt and keep their doors open.

Rudner noted a “number of significant judicial decisions that have had a tremendous impact on the enforceability of termination clauses” in the past year despite courts being shuttered.

“That may have gotten lost in the shuffle to some degree and many employers may not realize that the law has evolved,” he said. “At the best of times, employers are not aware of the legalities and it is even worse now that they are so focussed on the pandemic. 

“I get it. As a businessperson you’ve got a million things to deal with and human resources law is probably not on the top of your list, but it should be because it could have a huge impact. You need to know whether your employment contracts will actually protect you before you let someone go.”

Rudner says while there is still a mountain to climb before the employment world gets back on track, better times lie ahead.

“We do have the vaccine and although the numbers are not going in the right direction yet, I am optimistic that they will,” he says. “We are going to see an end to this, though perhaps not as soon as we would prefer. Employers need to prepare for a future that may look very different than the past. And although it sounds self-serving, everyone needs to stop making assumptions and decisions without proper legal advice.”