Williams HR Law LLP

Return to Work Case Studies from the Front Lines – Case Study #5

August 10, 2020

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Employment Standards: Assessing Risks as Employees Return to Work under the “New Normal”

As many businesses resume operations under Stage 3 of Ontario’s reopening, many employers may face heightened risks related to employment standards obligations as employees return to work under the “new normal” of COVID-19. Many employers have had to adapt the work arrangements for their employees, whether they are having everyone return to the physical workplace, continuing with remote-work set-ups, or adopting a hybrid approach.

In this fifth post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations facing risks and challenges related to employment standards obligations. Ontario’s Employment Standards Act, 2000 [ESA], like comparable legislation in other Canadian provinces, lays out minimum standards for employees related to issues such as overtime, break periods, and minimum hours free from work, among others. The following case study illustrates the importance of conducting proper risk assessments to ensure compliance with employment standards as employees return to work in the post-pandemic world.

As usual, the case study is based on a real-world situation with which we recently assisted a client. The details of the scenario have been adapted and anonymized.

The Scenario:

  • A large manufacturing company (“the Employer”) had to shut down most of its operations at the start of the COVID-19 pandemic. The manufacturing portion of the Company’s workforce ceased all operations, while many of the employees from the Company’s administrative office continued to work from home.
  • In June, the Employer began planning a return to work schedule for its workers, and decided to have all manufacturing employees return to the workplace with certain health and safety measures in place. These included social distancing measures, such as prohibiting employees from gathering in groups in the lunchroom or near the building entrance.
  • For its administrative employees, the Employer decided on a hybrid approach: it would bring about half of its administrative employees back to the office, while the others would continue working from home long term.
  • As the Employer prepared its plan to return workers to the office, one employee, Alicia, claimed she was owed overtime pay for many additional hours she worked while working from home late evenings, in addition to her regular hours. The Employer was shocked to receive this claim, because Alicia’s manager had never authorized any overtime hours and was not even aware that she had been working these additional hours.
  • The Employer wanted to discipline Alicia for claiming unauthorized overtime hours and refuse to pay the overtime she claimed. Before responding to the claim, the employer reached out to us for legal advice.
  • We advised the Employer not to discipline Alicia for the unauthorized overtime, and rather to seek an accounting of her overtime hours and pay her for them.
  • More broadly, we advised the Employer to proactively conduct a risk assessment of potential employment standards violations under its return to work plan. Specifically, Alicia’s claim demonstrates the employment standards risks associated with work from home arrangements, when an employer is unable to monitor employees’ work hours in the same way as if they were physically present in the workplace.
  • We also flagged potential risks associated with a hybrid remote work approach and risks for the manufacturing employees.
  • We helped the Employer conduct a thorough assessment of the employment standards risks for the various components of its workforce, and put in place strategic plans and polices to mitigate these risks.
  • Specifically, the Employer implemented a variety of risk mitigation measures, including establishing an overtime policy that appropriately addresses the work-from-home setting; communicating expectations regarding working after regular business hours (including the use of technology such as work phones after-hours); tracking hours of work; and implementing staggered break schedules and break policies to ensure manufacturing workers are able to safely take their required breaks.
How the Employer Met its Legal Obligations How the Employer Could Have Exposed Itself to Liability
  • Paid Alicia for the overtime hours she claimed to have worked after reviewing her claimed overtime, despite not having authorized the overtime hours
  • Conducted a thorough assessment of employment standard risks for all components of its workforce
  • Implemented clear policies to ensure it meets its legal obligations regarding overtime hours and pay, hours free from work, and break periods
  • Sought legal advice before taking disciplinary action against an employee related to an employment standards claim
  • Followed legal guidance to proactively identify and mitigate future risks in the return to work context
  • Had the Employer disciplined Alicia for working unauthorized overtime as opposed to a violation of an overtime policy, it could have risked liability and faced fines for reprisal if she brought a complaint before an Employment Standards Officer
  • Without implementing policies addressing overtime and work outside of regular business hours, the Employer could expose itself to many future claims of unpaid overtime or not receiving the required number of hours free from work.
  • Had the Employer not implemented a staggered break schedule for its manufacturing employees, some of these workers may have felt they were unable to take their breaks due to fear of crowding around the entrance of the building at lunch time, and claimed an employment standards violation. Additionally, without an enforced break schedule and policy, some employees may have tried to skip taking their break to instead leave work earlier to avoid crowds during their rush hour commute, resulting in employment standards violations.

Key Considerations and Takeaways:

This case study illustrates the variety of heightened employment standards risks that employers may face in the return to work context, whether “return to work” involves a return to a centralized workplace or adjusting to a “new normal” of remote work, or a hybrid of both. The key takeaway from this example is that employers should conduct a comprehensive employment standards risk assessment to proactively identify and mitigate a variety of risks, including in relation to overtime pay, break periods, consecutive hours free from work, and the accrual of vacation time.

Measures that employers should take to mitigate risks will depend on the specific workplace context, however the following measures will generally be useful:

Work from Home Considerations:

  • Tracking hours worked is generally much more difficult to do when employees are working remotely, however employers should implement a system appropriate to the nature of employees’ work to monitor their hours, which may include:
    • using computer spreadsheets or timekeeping software (or time-card machines if in a centralized workplace) to track hours of work and break times
    • blocking off break times and inactive hours in shared online or email calendars
    • tracking when an employee is online or potentially using software to monitor hours of work (although such software may raise serious privacy and other risks and should only be considered with legal guidance)
  • Implementing overtime policies to require prior authorization before employees may work overtime, or updating such policies to account for the work from home context (Note: this will not allow an employer to avoid liability for paying overtime hours worked, but it will help set clear expectations and allow an employer to discipline for a policy violation)
  • Communicating clear expectations to employees and managers regarding calls and emails after regular work hours
  • Establishing policies regarding where an employee must reside during their employment. The idea of widespread “work from home” setting has sparked the concept of “work from anywhere” – and it is possible some employees may believe they can move to a different region or country to do their job remotely. While this may be feasible for some workers, employers should consider the employment standards risks of employees working in different time zones, and may want to communicate expectations or create policies to ensure employees generally remain in a specific city or region.

Hybrid Considerations:

  • In addition to the measures listed above, under a hybrid return to work model, employers should strategically identify employees whose work is better suited to work-from-home arrangements, and consider having teams that collaborate most return to a centralized office space rather than be split up between working from home and the centralized office.
    • This could help avoid overtime claims from employees returning to the office who collaborate closely with colleagues working remotely, and who may feel they must stay late in the office waiting to hear back from a remote co-worker who tends to log on in the evenings.

Return to a Centralized Workplace:

  • Also in addition to the measures listed above, implementing staggered lunch and break schedules to ensure that employees feel comfortable taking their required breaks while upholding health and safety obligations and respecting social distancing requirements.
    • Although employees can satisfy taking their required breaks by remaining at their desks, there is a heightened risk of claims that breaks were not given if employees are restricted from physically leaving their workstations.

All Return to Work Contexts:

  • Continuing to conduct proper risk assessments as the return to work and pandemic context evolves along with the nature of how and when work is being done by employees;
  • Implementing an appropriate system for tracking employees’ hours worked, whether in a remote, centralized, or hybrid workplace;
  • Ensuring that accrued statutory vacation time entitlements for employees returning from leaves of absence or layoffs are respected and that employees take their required full vacation time entitlements, even if unpaid; and
  • Implementing and updating relevant policies to ensure expectations are clearly communicated to employees and enforced to mitigate the risks of various employment standards violations.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.