On Wednesday June 9th, we returned with our 5th annual “Ask the Experts” panel discussion. We joined forces with experts in employment law, employee benefits, human resources, and taxation to bring you expert advice in these complex areas of business.
We wanted to give our attendees the opportunity to ask specific questions directly to industry experts. We had a fantastic discussion, and those who attended came away with incredibly valuable information and lots of it for that matter.
We’ve compiled some of the questions and answers below for anyone who may have missed it. If you’d like to listen to the full answers, please download the full audio of the event.
Industry experts who were present on the panel:
- Dan Roberts - Partner, Tax, BakerTilly WM
- Judith Mewhort - Managing Partner, Montridge Advisory Group
- Ryan Anderson - Partner, Mathews Dinsdale
- Sara Bauer - Senior HR Consultant, Chemistry Consulting Group
In the beginning we asked our panelists to give an introduction about themselves and their firms. We also wanted them to talk about what they thought would be a big issue in their field that employers will be dealing with in the next couple years.
Dan Roberts: The issue that I seem to be addressing a lot lately and taking a lot of calls on lately, is the idea of the digital nomad, where individuals now realize that they can work from anywhere, work from home, work from different places in the world, and not necessarily have a fixed place of business in Canada or a home in Canada.
This creates a lot of issues, both for individuals and particularly employers. So I think it's going to be something that employers will see more of and will need to address.
Judith Mewhort: Before the pandemic, we were seeing a growing concern about employee mental health. That has escalated during the pandemic and will continue going forwards. And that will affect benefits plans. Currently, we are seeing an increase in drug utilization for stress, anxiety, depression, medications, and we expect that when the pandemic kind of is eased, or is more or less under control, that we will start to see a spike in long-term disability claims.
It seems counter-intuitive, but anytime there's a crisis, employees tend to buckle down and get through the crisis, whether it's financial or otherwise. Then after the crisis, this collective release of pent up stress and energy. So we are going to really work with our clients in the wellness space and help them to figure out how to keep things from going sideways as far as claim numbers go.”
Ryan Anderson The simple question about working from home is a big one. That question is going to come up in talks a lot. It might even be the first question. Employees have expectations about working from home and it’s creating new experiences for employers, for better or worse. Some employers are really struggling with what a return to normal looks like. In the long run, we're going to see that manifest in contractual concerns and issues in recruitment and retention issues.
Sara Bauer We've really seen a shift in the focus of a lot of companies. I think one of the key focuses for my industry moving forward is really going to be rebuilding companies, whether that be focusing on rehiring or restructuring. But one of the biggest pieces is going to be engagement. As we start to see a light at the end of the tunnel, I think that Covid has taught companies valuable lessons about who they are as an organization, what they stand for, and helped them develop a new appreciation for their people.
Covid really changed the way that we're going to work forever. We've discovered the fine art of remote working and Zoom. With the ability to work remotely, it's going to open up opportunities for everyone to hire across the globe. So as much as it's been a really devastating time for everyone, I think we're going to see a real shift and there's going to be some really bright opportunities ahead for all of us.
Getting a vaccine is voluntary and not mandatory by law. Can employers ask if an employee is vaccinated or not in the development of on-site protocols?
Ryan Anderson: If I'm an employer and I'm not looking to create controversy, the safe route is to have a voluntary vaccination policy or frankly, no policy at all. You encourage your coworkers to get vaccinated, but you don't make formal requests about it. That's the safe route.
There are some employers who are taking a more aggressive approach and are implementing a mandatory vaccination policy. When we look back to the previous case law on this topic, there's not a whole lot of guidance. There are decisions dealing with flu vaccinations and a few others, but when we look at those cases, the decisions are very split and they're virtually all limited to health care environments and long-term care.
What we do see is that the decisions are driven by science, right? When the decisions go against an employer trying to implement a mandatory vaccination policy, what we see is the decision makers saying that the science doesn't prove the efficacy of either the vaccine or that it's necessarily better or necessary at all, given the other PPE measures we can take and other safety measures we can implement in the workplace.
The mandatory versus voluntary vaccination policy goes right to the question about whether we can ask employees if they’re vaccinated. And before you answer that question, the thing you have to ask yourself as an employer is what you’ll do with that information. On one end of the spectrum, we've got employers saying they’ll keep the information totally confidential. They just want to be able to say that their workforce is 85% or 95% vaccinated.
Maybe that’ll affect their safety protocols in the workplace or maybe it won't. But if that's all you want, that's a much less intrusive privacy regime where you're asking for disclosure, but you're not gonna identify the individual.
On the other hand, perhaps you're going to use that information to implement specific safety protocols for individuals. So that's known sometimes as vaccination or mask. I've dealt with cases, where we say that it's not a mandatory policy, but I'm going to ask you to disclose whether or not you've been vaccinated. And if you have not, then I'm going to require you to follow certain safety protocols, whether it's social distancing, masking, working from home, etc. But by doing so, you're identifying the person as someone who has not been vaccinated. So that raises privacy concerns even higher.
The short answer is yes, you can ask employees to disclose whether or not they've been vaccinated, but you have to do so in a very planned way, you have to know exactly what you're going to do with the information, how you're going to collect it, how you're going to store it when you're going to disclose it and to whom, and when you're going to get rid of it and destroy it. And you're gonna want to communicate those things to the employee in a very clear way.
I've had this conversation with a number of clients who are grappling with this question. They want to know if they should and can ask. When we scratch the surface a little bit, typically they already know their company’s vaccination rate. Usually it's easy to discern with a smaller workforce how many people are vaccinated. I dealt with a client just a little while ago with 250 employees. Without any formal requests, they were pretty sure that between six and ten people had not been vaccinated. So my question back to the client was, what do you need a policy for? What are you trying to achieve? You're 98% vaccinated, perhaps you won't take any measures with that information, in which case you don't actually need confirmation that you've already achieved such a high level of voluntary vaccination.
How should we manage having some employees who are unwilling to get vaccinated once we are back in the office from an HR perspective?
Sara Bauer: This is a bit of a tricky one. And in some cases my guidance to clients would be to consult their lawyer to make sure they're getting the right information. The answer depends on the policy they have in place and whether they’re in a position to be demanding vaccinations based on their industry. Another consideration is what the guidelines set forth from the government are at the time, because there is a gray area there.
Employees refusing to get vaccinated is really tricky and should be handled on a case by case basis. It's not an answer that I can give kind of a blanket answer on. There's a fine line where we want to make sure that we're not violating human rights and understanding why someone is refusing to get vaccinated. It could be for medical reasons, it could be reasons for human rights, or for protected reasons.
So you need to have a very very clear policy. One that outlines the consequences (and ensures that those consequences are enforceable). You also need to know what you’re going to do if an employee can't get vaccinated for those protected reasons, whether it’s a work from home scenario or that they continue to use PPE at the workplace.
What trends are you seeing in terms of employee benefits as a result of the pandemic?
Judith Mewhort: First, there are the product specific trends that the insurers have been rolling out, which is to offer more and more digital options. Then there are the more global or general trends. The more global or general ones are really things that have been shifting over the last few years and have to do with sickness benefits. More of a shift towards wellness benefits, more physiotherapy, more massages, those types of things, as well as mental health resources and fitness. So that’s been a real trend, and I think it’s going to continue.
The number one question we've gotten from employers lately is how can they help their people struggling with the social isolation of Covid. How can they help their people who are feeling stressed or anxious? That's a big part of it and then there's been the financial piece. For a long time, employers felt uncomfortable helping with financial issues other than perhaps to offer a retirement plan. We've had a lot more questions again over the last 18 months about how to help their employees sort out their finances. We’ve been providing a lot more support in terms of financial education to our clients and to help their employees understand how-to manage money.
Are there new employer responsibilities or liabilities as a result of employees, more commonly working from home?
Dan Roberts: In terms of employer responsibilities, you have to look at things from a holistic perspective. There are both legal and tax obligations that need to be addressed. On the legal side there are things like employment standards law, human rights law, occupational health and safety. Then there’s workers' compensation and tax laws.
Generally I'd say that the rules are ever evolving. This is especially true when we're going through something like a pandemic. So it's incumbent on employers to ensure that they are complying with the laws that currently stand and make sure they're up-to-date and engaging the right people to help them do that.
From a tax perspective, the easy answer is that there hasn't been a lot of changes to the employer's responsibilities. Employers still need to ensure that they're properly assessing and withholding the right amount of tax, that they’re properly assessing whether there are any benefits that they're providing to the employees that are taxable or not, and withholding the right amounts.
With people working from home, it could become more difficult for employers to determine where the person working from and what their tax responsibilities are. What if an employee is working from somewhere outside of Canada and hasn’t told the employer about it?
At the core of these situations is this: employers are responsible, from a tax perspective, for ensuring that the right amount of taxes are withheld. The key thing that has changed and will change is how much attention employers will need to pay to properly ensure that they are applying the right rules and following the correct laws and obligations.
We hope you found the information talked about to be of great value. To see the full list of questions addressed and the additional ones asked on the day, download the recording below.