Hybrid working time models should be recorded in writing

Opinion: With a clear policy, employers should be able to meet the demand for hybrid work while maintaining control over workplace attendance, culture and performance

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Surveys show that more than 66 percent of employees want hybrid working hours: the flexibility to go into the office part of the week and work remotely on other days. Many employers, anxious to accommodate and thus retain and attract these workers (and potentially save on leased office space), accept hybrid schedules without considering the consequences.

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Employers can choose where the work is done. Before COVID, that was traditional in the office. Employers allowed/required their employees to work remotely, in whole or in part, due to COVID, but reserved the right to require a return to the office as soon as it is safe and legal to do so. Even employees hired to work remotely during the pandemic may be called into the office without a clear written agreement that remote or hybrid work is an ongoing tenure of employment. Such remote working arrangements were clearly temporary to address concerns about workplace safety and public health requirements. However, if remote work is allowed to continue, workers will soon be able to argue that remote work has become a condition of employment if no explicit communications from the employer preclude that conclusion.

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A common source of misunderstanding is the employee who has been working remotely and unilaterally moved to a distant suburb or even to another province or country. Assuming they started their employment locally, the employer may require the employee to return to work at the local branch. Apart from that, if the employee unilaterally relocated months ago and this was known to the employer and not contested, the return to the office should be announced in advance. Indeed, for any remote work arrangement that has exceeded mandated “lockdown periods,” employees are entitled to receive advance notice of return-to-office requirements so that they can adjust their own commutes, childcare arrangements, and other needs.

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Having an employee work outside of the province may result in the application of the remote location’s labor laws. This can lead to compliance issues with foreign or different labor laws for both the employee and the employer. Which public holidays apply, for example? So far, governments have taken the view that the primary location of regular physical work performance determines which labor standards apply to online workers as well. A BC hired employee who transfers from Quebec to remote work falls under Quebec legislation.

The first step in “hybrid” is to carefully review the requirements of each position to determine the minimum hours or availability required, rather than allowing for general policies that allow everyone to expect hybrid hours.

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When granting hybrid schedules, have a framework policy that clearly states that all hybrid work is done with written permission and the privilege can be refused or revoked by the employer for any reason. Remember, if an employer hires a worker to work hybrid or fully remotely post-COVID without reserving the right to change things, the courts are quick to treat that as a mandatory term of employment. This, in turn, means that a unilateral return-to-work order that is effective immediately or very soon constitutes effective termination, a serious breach of contract that entitles the worker to terminate but receive severance pay.

Employers should keep hybrid labor rights out of employment contracts where they are considered contractually binding. Conversely, employees who believe they will be hired to work remotely indefinitely should include this in their employment letters or employment contracts.

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In your hybrid policy, state all significant attendance, time and availability requirements and the employer’s right to change them or withdraw hybrid privileges with minimal notice, eg four weeks. Mention that remote work requires a high level of trust and abuse of the privilege will result in disciplinary action or termination. If there are concerns that employees are working too far away to attend events in person or trigger the application of other laws, request that remote work be conducted substantially in the region or province of hiring.

By following these tips, employers should be able to meet the demand for hybrid work while maintaining control over workplace attendance, culture and performance.

J. Geoffrey Howard is the Founder and Director of Howard Employment Law, based in Vancouver. This column is not intended to provide legal advice.


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