Source: hcamag.com

Layoffs, union activity, accommodation among top issues, according to employment lawyer

A common saying since 2020 has been, “I’m tired of living in unprecedented times.” As we move into the second half of the decade, HR professionals can be forgiven for thinking that the last five years have felt like 10. The pandemic brought new strategic challenges that continue today: return-to-work and remote work, social media in the workplace, layoffs, and work reductions, among others.

While mandatory vaccination policies may be stashed in a drawer (for now), the COVID hangover continues and impacts the workplace in ways that are difficult for HR to manage.

Workplaces don’t operate in isolation and managing the modern employment relationship means being conscious of broader social issues. 2025 will likely bring continued and perhaps amplified economic anxiety for employees, political divisiveness that may come into the workplace, and other outside stresses that create tension among employees.

Discussed below are some of the top legal issues that we see HR being able to tackle in 2025 if the will and resources are there.

Pushing flexibility in your workforce
One of the lessons learned from the first half of the decade is employers need to balance statutory obligations with the ability to respond to unexpected changes. Canada confronts potential economic challenges in 2025 that may require employers to quickly pivot, particularly in light of the new US administration’s threat to impose tariffs on Canadian products.

A clear example of this difficult balance is layoffs. In March of 2020, employers who had never had to conduct layoffs looked to rely on the layoff provisions of employment standards legislation. The law was well established that a layoff is a constructive dismissal unless the employer either reserved the right in the employment contract or had a history of layoffs that the impacted employee knew about and could reasonably contemplate might occur with respect to their position.

Most employers had neither option and cases since COVID have held that a layoff is a constructive dismissal, even during a global pandemic.

HR can provide significant value in reviewing offer letters and policies to provide for flexibility and help managers understand the limits under employment standards with respect to changing schedules, hours of work, overtime, and layoffs. If you haven’t reviewed your offer letters or handbooks in the last 12 months, now is the time to do so.

Employee class actions
Employee class actions are increasingly used to seek redress for historical issues or practices that current HR and management need to deal with. 2024 saw class actions related to the implementation of mandatory vaccination policies; sexual, physical, and psychological assaults by former employees; failure to implement and maintain anti-harassment programs; data breaches; and other issues that go beyond the traditional realm of wage and classification-related class actions.

What does this mean for HR in 2025 when it can’t remedy the sins of the past? It emphasizes the importance of bringing to the attention of management risk areas that may not be known or that the company has not wanted to deal with. There are traditional problems that always require attention: proper classification of employees and contractors, ensuring overtime eligibility is correctly assessed and paid, and payment of vacation pay on all wages, for example.

However, as evidenced by some of the 2024 cases, HR must focus on compliance across multiple areas.

Developing your labour strategy
Another strategic challenge that continues from the pandemic is the increased activity of trade unions coupled with a renewed interest in unionization from younger generations. Gen-Z and millennials have substantially higher positive opinions about unions than previous generations and unions have an increased willingness to organize outside of traditional unionized workplaces (for example, Starbucks, retail operations, and gig workers).

If you don’t have a unionized workforce, it is time to move away from “it wouldn’t happen to us” and start thinking about where you have vulnerabilities. You may have a distribution centre with only a handful of employees while the majority of your workforce are remote sales representatives, but that doesn’t mean the distribution center isn’t vulnerable.

It is important to carefully assess: the rules of certification in your jurisdiction, what you can and cannot say in the face of a unionization drive, employee engagement and satisfaction with the terms and conditions of the workplace and what activity is occurring in your area.

Managing leaves of absence and accommodation requests
Every employer is struggling to keep people at work. Not only are the frequency of leaves of absence increasing, but managing those leaves has become more complex.

A hard issue to deal with is the lack of information provided by employees. Employees and medical professionals resist providing necessary information to employers to manage the process, particularly if there is no third-party insurer involved. Employees often misunderstand what information the employer is entitled to, and employers can be guilty of falling into the “out of sight, out of mind” trap and not be diligent in pursuing documentation.

You may also have managers providing accommodations to employees without keeping HR in the loop (and therefore without proper documentation), which can lead to serious challenges.

Leaves of absence and requests for accommodation are not going away and there are solutions to these problems if the employer makes it a priority.

First, ensuring that a strong leave-of-absence policy and an accommodation policy is in place must be at the top of the to-do list. These policies should be clear on what documentation is required, the employer’s expectation on the frequency of communications, how to request an accommodation/leave, who is involved in the decision-making process (HR, managers, third-parties) and the return-to-work process.

Second, the employer must train its managers on leaves and accommodation issues and provide clear communication to all employees on the policy and process. Managers cannot be allowed to make accommodation decisions without bringing in HR, and managers must understand their overall obligation to ensure that a worker is working safely.

For example, if an employee attends work and says that they pulled a muscle but can just “take it easy” that week, a call must be made to HR to manage the process. It may seem like overkill, but if the employee aggravates the injury after being assigned work, a temporary issue can become a longer leave, a workers’ compensation issue, and an occupational health and safety claim.

Respect in the workplace
It’s challenging to manage stressed and anxious employees when that stress and anxiety is not related to the workplace or the work itself. Employers cannot control what happens outside of the workplace, but it can be clear on the expectations it has in the workplace. In order to help employees understand communication and behavioural expectations, employers need to emphasize respect in the workplace policies and provide practical training that doesn’t just focus on the traditional examples of harassment and discrimination.

We have seen a significant rise in complaints about behaviour that used to be commonplace (such as pressure to consume alcohol, inappropriate language or compliments) or can be boiled down to “I had to go through it when I started and so do you” in terms of work assignments or attitudes, or result from social media activity or texts between employees that occur outside of work but come into the workplace.

Arranging for training on mental health, generational differences, unconscious bias, and micro-aggressions isn’t a case of an employer being politically “woke” but of an employer responding to a new generation of workers that have different expectations of the workplace. Being clear in your harassment and discrimination training on what types of actions or words constitute harassment or discrimination and what doesn’t, helps all employees understand how to conduct themselves at work.