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Considerations for a Return to the Office or Workplace

Considerations for a Return to the Office or Workplace


Alberta entered Step 2 of lifting its public health measures on March 1, which includes some of the following measures being lifted in the province: 

  • the provincial mask mandate (except on municipal and intra-provincial public transit for Albertans 13 and older, at AHS-operated and contracted facilities, and in all continuing care settings);
  • the mandatory work-from-home requirements;
  • capacity limitations on all large venues and entertainment venues;
  • indoor and outdoor social gathering limits; and 
  • restrictions on interactive activities, table limits, liquor sales and closing times for bars, restaurants and other food serving businesses.

Most notably, the mandatory work-from-home requirement was lifted in Alberta for Step 2. Notwithstanding most public health restrictions in Alberta now being lifted (and all such restrictions will be lifted with the implementation of Step 3), employers should keep in mind that they still have a legal obligation under occupational health and safety (“OHS”) laws to provide a safe and healthy workplace for their employees and patrons or clients. We recommend employers consult an experienced labour and employment lawyer to review their legal rights and obligations in this regard, as each workplace and employment relationship will present unique circumstances for consideration. Employers may also want to consider the following issues related to recalling remote employees back to the office or to a physical workplace.

Public health orders

Employers will want to review any public health orders in effect, as the current situation could rapidly change with the emergence of another highly contagious variant and/or rise in hospitalizations, such as what happened with Omicron in late 2021 and resulted in a delayed return to the office for many businesses. For Alberta, current public health actions can be found here. 

Covid health protocols and policies 

At a minimum and bearing in mind public health orders in effect, employers will want to set out COVID-related health and safety protocols and/or policies for their workers with respect to such issues as health screening, personal protective equipment, testing, distancing, sanitizing, and isolation or quarantining in the event of a positive test result. Businesses will want to ensure that their Covid protocols or policies are comprehensive enough to ensure a safe and healthy workplace and are also mindful of the anxiety and mental health concerns for employees returning to in-person work for the first time in nearly two years. A worker with legitimate concerns about a workplace has rights under OHS laws to refuse unsafe work. Further, employers who fail to meet their OHS obligations could be liable under OHS laws and negligence for failing to meet their duty of care. 

Other policies affected by the pandemic 

With the pandemic now into its third year, employers may also want to draft or revise other policies applicable to their workplace. Some policies that may warrant further consideration and revision due to Covid include, for example: 

  • Sick leave policies for Covid-related absences from work, including leave to care for a sick family member, or to take care of children in the event of a loss of childcare, as applicable (such policy should also address and be consistent with any government directives on the matter);
  • Scheduling and attendance policies, for example if an employer chooses to stagger employees’ return to the workplace or stagger working hours and/or breaks; 
  • IT policies, cybersecurity, confidentiality and non-disclosure policies, that address employees’ remote working arrangements;
  • Human rights policy for accommodations required due to Covid; 
  • Travel policy if domestic or international travel is required, which is consistent with current travel guidelines or restrictions in place due to Covid; and
  • Privacy policy to keep employees’ personal information private, for example in the case of a positive Covid test and mandatory isolation and in respect of the collection of vaccination information (as permitted).

Communications policy

Just as important as creating Covid-related policies and protocols, is the need for each workplace to create or revise a communications policy on how it will communicate such policies to its employees. This policy should also include communication expectations for how employees will communicate with the employer and each other, particularly in the case of continued remote working arrangements. A business may also want to consider whether to create a communications committee, and employee training when implementing new employee policies. 

A communications policy should address how communication with the entire organization will be made in the event of rapidly-changing circumstances, such as the imposition of another mandatory work-from-home public health order and any revision of policies necessitated by changing circumstances. A communications policy can also include ways for an organization to engage with its employees, including methods that it will use to solicit employee feedback.

Remote or hybrid work policy

In some cases, employers may want to consider offering employees hybrid work arrangements, or permanent remote options. For more information on why employers should consider offering remote or hybrid working arrangements, please read our blog here.

New or updated employment agreements

Employers and employees should both keep in mind that any material changes being made to the employment relationship, such as implementing new workplace policies or implementing a new hybrid work arrangement for employees, may provide an opportunity for both sides to renegotiate and enter into new and/or updated employment agreements. 

CARSCALLEN LLP’S EMPLOYMENT, LABOUR AND HUMAN RIGHTS EXPERTISE

The first step for any employer considering recalling remote employees to the office should be to an experienced employment lawyer. An employment lawyer can advise employers on their legal rights and obligations associated with a return to the office or physical workplace, as well as review existing employment policies to determine whether revisions or new policies are needed for a particular workplace. Additionally, an employment lawyer can advise both employees and employers who are renegotiating or updating the terms of their employment agreements. 

Whether you are an employee or an employer, Carscallen’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee. Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises.

If you are an employer or employee and have any question about the legal issues associated with a return to the office, or any other COVID-19 related employment questions, please contact any member of our Employment, Labour and Human Rights team.

*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

Posted: March 15, 2022
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