The legal aspects to include in a hybrid work policy

by Roderick van Vliet, head of legal at HR tech company Remote

As companies look to adopt hybrid work, it is critical that their workplace policies not only establish the temporary remote work flexibilities offered amid the pandemic, but are suitable for future growth. Executive leaders and HR managers considering offering flexible work options in the long-term must develop a policy that clearly states the changes in a company's operations, benefits, and pay. With many employees moving to different cities, states, or even countries, these policies must account for the legal requirements of local as well as national governments. Failing to communicate permanent changes and meet regulations through work policies will not only disrupt internal processes and cause confusion, but also open up the company for  legal liabilities.

Here are some of the essential legal aspects to keep in mind when developing a hybrid work policy.

Keep the Global Policy High Level

Before setting a hybrid work policy, employers must first set a clear definition of what “hybrid work” constitutes, as this term is rather ambiguous and can hold various definitions. Executive leadership must work with their HR teams to decide if they want to delineate the criterias for employees to work remotely, whether it is a rotational hybrid schedule or based on other employment factors. For example, an organization might ask for a 6-month history of continuous employment.

When developing a hybrid workplace policy, employers should also emphasize management rights, which means that the policy can be updated at any time. This allows HR teams to grant ad hoc arrangements or special requests in case of: inclement weather, business travel, and family obligations. Stating these rights will help establish boundaries and form the basis for justification when disciplining employees for violating the policy.

Be sure to keep the hybrid policy at a high level to cater for variation in local requirements in the details, as certain provinces and territories have specific regulations and laws that can apply and impact hybrid employees living in different areas. In Canada, for example:

• The Ontario Employment Standards Act will apply to workers located outside the province if the work they do is a continuation of work that originated in Ontario.
• The Alberta Employment Standards Code will apply if the employee works outside the province for an Alberta-based company, depending on the specific circumstances and the nature of the employment agreement.
• The British Columbia Employment Standards Act will apply if there is a strong enough connection between the employment and the province. The factors to determine the connection are established by case law.
• The Quebec Labour Standards Act applies when the work is done across multiple provinces (both in and outside Quebec), but the employee’s employer has an office location in Quebec. This may also apply when both the employer has a work location in Quebec and the employee lives in Quebec, but the work is done outside of Quebec.

Because of the disparities in provincial laws, employers may want to consider entering into work-from-home agreements with their remote workers. In drafting such agreements, employers may want to consider the particular provincial law that applies to the employment relationship, as well as whether the employer is agreeable to the employee performing work in another jurisdiction.

Data management across multiple jurisdiction

With employers accessing and handling data from multiple jurisdictions, it is of the utmost importance that companies comply with legal regulations on data privacy and security at the local, national, and international level. Employees should understand how to comply with GDPR and CCPA if the company has customers in those countries and states.

IT teams and enterprise systems will also need to meet additional requirements set by the countries they operate in. For example, Canada follows ISO/IEC 27001:2013, which lays out the requirements for establishing, implementing, maintaining and continually improving an information security management system. Governments usually issue resources and guidelines to assist with compliance and any certification process such as the ITSG-33 publication by the Communications Security Establishment Canada (CSEC).

Employment & Payroll

Local laws will always govern employment and payroll. When employing in any country, you need to consider its immigration, employment and tax requirements (not mentioning intellectual property rights). Companies usually have three options: 1) establish a local entity with HR, legal, compliance, and finance, 2) pay local providers to handle the service, 3) use an employer of record service (EOR).

Throughout the pandemic, many companies have brought on remote employees from different cities and countries, but often without a long-term plan. As business grows, expanding these remote teams can become necessary, so it is important to lay the groundwork now to make remote hiring easy in the future.

When it comes to payroll, time tracking can become more difficult with hybrid and remote employees due to the lack of physical oversight. While companies should not micromanage their teams, basic time tracking is important to watch factors like overtime. Some solutions may be to limit overtime or subject it to prior approval. It can also help to define performance expectations and make it absolutely clear what is expected of the employee in terms of work hours and breaks. Furthermore, consider implementing a timesheet system and requiring employees to input start/end time along with daily number of hours worked.

Of course, the existence of a requirement that overtime must be pre-approved before it is worked will not necessarily relieve an employer of liability. Employers who do not monitor and enforce their pre-approval requirements carefully and consistently may have to pay for any unpaid overtime.

Establish Health-Conscious Ergonomic Practices

Employers and HR managers must be aware of the myriad of health and safety conditions that can arise from poor ergonomics, which refers to the process of optimizing the workplace environment to be conscious of human abilities and limitations.

Part XIX of the Canada labor code outlines the process for implementing ergonomics regulatory requirements in the workplace. Under this law, all employers are responsible for developing and implementing a Hazard Protection Program Under for the prevention of hazards, including ergonomics-related hazards.

Although workers may not be physically present in the hybrid office, the employee's home is still considered an extension of their workplace. Therefore, it is on the employer to ensure their teams are working in an environment that enables them to do their jobs safely and effectively. A multitude of health problems can arise from working on computers for prolonged periods, which can range from poor posture and muscle tension to more severe cases such as carpal tunnel, tendonitis, and musculoskeletal injuries.

Employers can counteract the likelihood of their workers encountering these health hazards by supplying them with a stipend for purchasing furniture and equipment, such as suitable desks and adjustable chairs. However, keep in mind that this must be considered as an expense reimbursement for taxation purposes.

In this era of hybrid work, companies must look to these essential legal elements as prerequisites to reopening their doors. It is always better to design the hybrid model to operate as a remote-first business, otherwise the setup will not be inclusive for the colleagues working remotely. Having a global workplace policy that clearly documents these internal processes, will not only provide a living resource that all employees can access at any time, regardless of location, but will reduce the likelihood of encountering costly liabilities.