The nature of work has drastically changed over the last year in response to COVID-19. As we move past the one-year mark since the start of the pandemic, some of these changes are proving to be mainstays rather than temporary measures, including in relation to remote work and more flexible work arrangements.
Accordingly, we expect that employers will begin to consider and reflect these changes in the standard clauses of their employment agreements in order to not only bring clarity to all expectations governing the employment relationship, but to limit their liability as well.
Location of work
The pandemic has normalized work from home arrangements as employees were forced to quickly adapt to remote work in response to the closure of all non-essential businesses. With many workplaces able to operate almost seamlessly outside of a formal office, many workplaces are now considering a future that permits more flexibility in terms of where employees may perform their work.
Employers who wish to provide employees with some flexibility in terms of their work location may consider incorporating language into future employment agreements that contemplates where the employee will be required to perform his/her usual work duties.
Employers are also encouraged to consider including language which permits them the discretion to change the employee’s work location, as this will give employers the flexibility to move employees to different locations and/or to require them to work from home.
Employers contemplating changes to future and/or existing employment contacts are encouraged to work with experienced employment law counsel to ensure that the clause remains onside any applicable employment standards legislation, such as Ontario’s Employment Standards Act, 2000 (“ESA”), and that the clause will be found enforceable by the courts.
COVID-19 has led to an unprecedented number of temporary layoffs, including in situations where an employee’s employment does not contemplate a layoff. Accordingly, many employers placed their employees on unauthorized layoffs in order to balance their financial concerns against business demands.
In response, the Government of Ontario amended the ESA to allow employees placed on a temporary layoff to be deemed on an unpaid, job-protected leave. The Infectious Diseases Emergency Leave applies throughout the “COVID-19 Period”, which is retroactive from March 1, 2020 and in effect until July 3, 2021 (subject to further extension).
With the legality of temporary layoffs at the forefront of discussion this past year, layoff provisions have become an essential provision contemplated by employers looking to improve their employment agreements.
Accordingly, employers are encouraged to consider implementing the following in any future layoff provisions:
- The circumstances that will trigger a temporary layoff;
- Whether the temporary layoff is of limited duration or is open-ended;
- Whether the employee is entitled to any compensation or benefits during the layoff; and
- Whether there is a predetermined time at which the laid-off employee’s employment is terminated.
Employers looking to amend and/or incorporate a layoff provision are encouraged to speak with experienced employment counsel.
Hours of work
With remote work likely to remain, employers are encouraged to clearly outline their expectations with respect to work from home arrangements in employment agreements, including in relation to hours of work and whether the position is eligible for overtime under the ESA, for example.
While working from home, hours of work may not be as clearly defined. Accordingly, employees may wish to ensure that an employee’s expected hours of work, breaks, and procedure for obtaining approval for overtime are well-defined within the employment contract.
Further, employers may also discuss the expectation of recording time with the employee to clarify the expectations and to ensure that there are clear records of time worked and any overtime incurred.
Employers are encouraged to work with experienced employment counsel to ensure that any new provisions are drafted in accordance with the applicable legislation.
As we continue to reflect on the challenges and changes brought on by the COVID-19 pandemic, employers are encouraged to consider how their existing employment agreements may be improved to bring clarity to the employment relationship and to limit their liability in the future and for the remainder of the pandemic.
Employers interested in improving their existing employment agreements may wish to discuss any contemplated changes with an experienced employment lawyer so that they can advise on the language, legality and enforceability of the clauses and the contract as a whole, and ensure that consideration is provided in circumstances where employment agreements with current employees are improved.
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