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Working from home post-lockdown: a vested right?

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Working from home has allowed us to carry on during the pandemic. How will it look moving forward?

Before getting into the notion of vested right, we should specify that the situation our organizations and their employees have experienced has helped spotlight two paradigm shifts or pre-conceived ideas.

Employers: Working from home doesn’t automatically imply a loss of control or lower workforce productivity

Naturally, like any type of work, there must be proper parameters in place to ensure effective remote work. Employers and employees all have a role to play in maintaining control over their work output when working from home.

First, employers must provide their employees with the proper tools they need to do their job, such as a reliable IT infrastructure, effective communication tools and full, secure access to the company’s network.

Above all, employers must implement a structure and management policies that will allow them to rigorously monitor the work done while ensuring a stimulating employee environment.

The results are out for those organizations that put in place an effective work environment: steady productivity or even a productivity gain, easy-to-manage workspaces, a lower rate of absenteeism, and more.

Employees: Telework is an asset but not the solution many had hoped for

For many employees—before they were swept into it—working from home represented freedom and access to quality of life. They could work at their own pace and on their own time and avoid commuting, all of which meant a healthier and more balanced lifestyle.

But COVID-19 brought about a busy teleworking period and some major constraints that have led many to realize that working from home was not as convenient as they had hoped. They feel lonely from the lack of social interactions, the work environment is often inadequate, communications and data transfer are often compromised by a weak internet connection at home, etc.

Overall, from an employee perspective and in general, working from home supplements the traditional structure. What employees take away is a greater sense of freedom and a better quality of life. They’re less weary of the daily grind. Reluctant employers must come to terms with this new reality because reverting to the traditional way would be taking a huge step back.

Is telework a vested right?

The notion of vested right has long been a hot topic in Quebec, especially when it comes to “informal” working conditions granted by the employer: from free coffee to a company car for personal use, to all sorts of privileges handed out over the years. Those benefits are hard to part with once you’ve gotten a taste of them. It’s even harder to uproot a benefit or privilege that’s highly popular with the majority of employees.

In his Dictionnaire canadien des relations du travail, Gérard Dion defines “vested right” as “l’ensemble de droits, privilèges ou avantages antérieurement reconnus aux travailleurs et qui dérivent soit de la coutume, soit d’une reconnaissance de la part de l’employeur, soit d’une clause de convention collective” (all of the rights, privileges or benefits previously afforded to employees as a result of a tradition, be it as a form of recognition by the employer or a clause in a collective agreement).

From a legal standpoint, it is recognized that a right becomes a vested right when certain criteria are met:

  • Generality: When a benefit is granted to a homogeneous group of employees;
  • Consistency: When a benefit is granted consistently over time.

It we take a more formal approach, it’s clear that the temporary nature of the situation doesn’t allow us to qualify telework as a vested right. However, it was already an option for employees, as recognized by both the provincial and federal governments for income tax purposes well before the pandemic.

After all, for the majority of organizations, this is uncharted territory. We’re dealing with an unprecedented situation declared by the public health authorities, rather than a firmly established phenomenon that organizations are familiar with.

A new workforce retention criterion?

We cannot limit our analysis to those legal and formal considerations because, beyond the current context, we cannot disregard the real impact on organizations if they were forced to abolish telework and go back to normal. While everyone was rushed into the experience, the new work-from-home reality has more pros than cons for companies and employees alike.

Employees have largely benefited from this practice. They’ve shown that, when adequately managed, working from home can be just as productive—if not more productive—than working from the office. To take this back from them would not make sense; it would make them feel like they’re going backward. The risks of employee disengagement are real and would largely undermine past employee retention efforts.

Over the past weeks, employers have had a chance to see first-hand that they can effectively manage their employees’ work remotely. The traditional work model is flawed. We need only look at the multiple studies and research conducted on time management, conflicts, workspaces, absenteeism and presenteeism, and so many other aspects of workplace health and safety.

Telework on such a large scale is a recent practice that is already rooted in strong foundations: the resilience of human beings and their ability to adapt and transform in the face of crisis. As a result of this new work organization, there will be a need to improve how it is managed and governed. New management practices will eventually be developed that will benefit employers and employees alike.

How to achieve a successful work-from-home experience

Here are some key tips for employers to consider to achieve a positive experience for themselves and for their employees.

Employee engagement

Distance can lead to employee disengagement. So, it’s important that you have the necessary tools to maintain employee engagement (regular virtual group or individual meetings, regular mandatory office days, etc.).

Follow-up of objectives and deliverables

Employees must feel that they’re accountable and responsible for results and progress with their files. Follow up rigorously without being intrusive; find the right balance.

Ergonomics, health and safety

Employee security must always be a concern for employers. Even if your employees work from home, follow up regularly by providing the necessary support. Don’t underestimate the psychological aspect of telework which can often trigger isolation and, ultimately, psychological issues.

That being said, and from the past months’ experience only, it would be premature to claim that employers are now obligated to pursue telework based on the notion of vested right. Clearly, they can still exercise their managerial authority in determining whether an employee can still work from home.

Regardless, whether we talk about a vested right or a new reality, the fact remains that telework is a well-established practice and employers who don’t jump on the bandwagon will face workforce productivity, competitiveness, efficiency and retention issues down the road.

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