The tension between workplace culture and return-to-office mandates

Statistics Canada estimates that, in 2024, nearly half of Canadian employees are still working, at least in part, remotely, according to a report release in January 2024.

The prevalence of work-from-home arrangements in the post-pandemic era has created an unprecedented (not that word again!) clash between employers setting rules, policies and expectations for workplace practices and contending with productivity concerns, and employees not wanting to (and seeing no reason to) forego the “new normal.” Recent and well-publicized examples of this tension include the union pushback against the federal back-to-office mandate for public servants in Canada and the decision taken by Amazon’s Chief Executive Officer to openly recall its employees to five days a week in person, citing an effort to preserve the company’s culture and return to a pre-pandemic reality.

What is perhaps most challenging for employers closely following the Amazon scenario is that, traditionally, rationally explaining the reason for a company decision and reasonably connecting it with the needs of the business would have been sound rationale to the ears of employees. Preserving or insisting on “culture” was, until recently, seemingly difficult to argue with. However, Amazon did just that - citing the advantages of in-person work, learning, collaboration, and connection - only to receive serious pushback and criticism.

Has the understanding and expectation of workplace culture eroded?

From a legal framework perspective, the observation of a fellow labour and employment lawyer at a recent conference was compelling: the vast majority of Canadian laws dealing with employment and labour speak in terms of “establishments,” consistent with the environments that those laws were meant to regulate when the acts were written. While this has meant that employers can be creative in regulating the remote or hybrid work environment, employees are also more likely to take issue with or challenge those rules or decisions in the absence of any relevant precedent. And so the tension rises.

For example, in recent years some of the most significant changes to employment standards legislation in Ontario rolled out under various iterations of “Working for Workers” Acts have included the introduction of a “Right to Disconnect”, a requirement to disclose “Electronic Monitoring” of employees in the workplace and, most recently, anticipated requirements for pay transparency, the disclosure of any use of artificial intelligence in hiring, and limits of medical documentation an employer can request of an employee taking a short sick leave. The themes of these changes suggest that trust between employers and employees is low, to the point where legislative intervention is necessary.

Practically, one challenging aspect of culture building is the pressure for increased sensitivity on the part of employers to the individual employee and their specific needs. On the one hand, the pandemic offered an opening for more flexibility around the lives of each employee. However, when it comes time to rebuild the workplace “nest,” individuals that are best served by a hybrid or work-from-home arrangement (and where their productivity and performance are not at issue) immediately experience low morale when that individuality and choice (and to some extent, the reward for their loyalty and quality of work) seems unprioritized. In this way, culture is at odds with a “case-by-case” approach.

Workforce demographics are also interacting with and weighing on workplace culture tensions. During a panel on unionized workforce trends at an annual labour and employment conference last year, one panellist - a US labour lawyer - discussed emerging trends in US labour law and the impact on the US market. Surprisingly (perhaps naively so), a significant majority of their presentation was spent on stressing the impact that a Gen Z workforce was having on employers; specifically, the demand for flexibility, radical transparency and a “you need me more than I need you” attitude.

When it comes to remote or hybrid work, a younger generation that is more accustomed to validation through social media or information gathering online may be less likely to independently seek out (or insist on) personal interaction or feedback. On the one hand, this reinforces the need to insist on cultural norms in a workplace. On the other hand, forcing practices out of line with worker values could easily diminish morale.

What constitutes healthy culture?

The legislative changes noted above suggest that these trends and “sensitivities” are not uniquely generational. However, this added dynamic serves to illustrate that today’s workplaces are much more complex and nuanced than best practice and policy enforcement, and what constitutes “healthy culture” requires an updated and substantive analysis. In my view, culture is unlikely to be defined simply by where people work.

Though it is certainly the hope that the labour market will not have such extreme pendulum swings as it did during and since the pandemic, market fluctuations mean that employers and employees will continue to have at least some push and pull in terms of leverage, making these considerations relevant, and strategies to address them necessary. Otherwise, workplaces will be defined by a power struggle and an endless feedback loop of built versus forced trust, loyalty, and workplace health.

For employers who have not quite taken the Amazon approach and are still carefully (or perhaps happily) navigating the new normal, best practices continue to apply:

• A strong, clear and detailed work-from-home policy, which includes key information such as where employees are permitted to work from, what their hours of work will be and, generally, what is expected of them with respect to their performance and responsibilities. The policy should contain terms and language in the event of a dispute in the course of administering such a relationship.
• A strong understanding of privacy, confidentiality, and monitoring related concerns, which is best considered with the assistance of legal counsel given the many ongoing updates to privacy laws in Canada.
• A clear and consistent approach to conduct and discipline issues, including refusals to attend in person as directed or required.
• A solid framework and understanding of how preferences differ from legitimate accommodation requests, and how accommodations will be considered and responded to. Legally mandated, as opposed to practically or empathically warranted accommodations have become more difficult to distinguish as a result of the workplace culture tensions described above. A clear boundary on organizational policy and approach versus the law can assist with knowing where to draw the line.
• Finally, for employers with unionized environments, additional time should be allocated and expected for issues of remote work and related issues in negotiations of collective agreements. Matters such as the amount of time an employee can work remotely, equipment, expenses, insurance and discipline are bound to be contentious at the bargaining table.

Dasha Peregoudova is a partner at Aird & Berlis LLP in Toronto, advising clients on a broad range of employment, labour, governance, and sports matters.