When it comes to figuring out the way forward, we’re pretty much at showtime. In September, departments started mandating RTW options, “forcing” people into the office as it is pitched by employees and unions.

Some people want to argue whether the government as the employer has the right to make the decision unilaterally. Others want to argue that the employer has consulted with employees on the best way forward and many have said RTW is a good thing that offers benefits that WFH don’t. They did pilots, and the people have spoken! Others want to argue that it isn’t safe and there’s a giant occupational health and safety issue with people being back in offices together.

I don’t have much interest in any of those topics, to be honest. Primarily, I don’t care because there’s nothing really to “debate” in any of it.

Labour law is 100% on the side of government about who chooses whether a job is done at home, at work or in the office. There is virtually no case law, legislative framework, collective agreement support or anything else anywhere on the planet that says a employer has to make the decision with its workers or with unions. It’s not a “workplace element”, it’s the location of a workplace. If the government can move a department from one end of Ottawa to the other side of the river in Gatineau or from Gatineau to the south-end of Ottawa, and can do so with a stroke of a pen, or even across the country, there’s nothing anywhere that says an employee has a say in whether a job should or will be done better at home, or at home at all. Outside of a Duty to Accommodate requirement for a recognized medically-backed rationale (and FYI, virtually NO medical rationales have stood up to justify WFH provisions tied to COVID), or discussions of what COULD be done, the decision is 100% in the purview of the employer. You may not like it, you may not want it, but the law doesn’t care what you “want” or “like”. It’s relatively black letter law. Even more pointedly, the employer doesn’t even have to say it’s better, they could decide simply that they prefer it that way. Case closed, done deal. They can “force” everyone back to work five days a week if they want. Because that was the original job. It might be different if they started fresh today, but they aren’t. All the jobs are tied to physical job sites, and so the government isn’t “forcing” people to RTW, they’re just stopping giving permission to WFH 5 days a week. Is there anything interesting in there to debate? Nope.

If people want to argue that they consulted with employees about what works or not through pilots, it’s true, they did. Did they ask the right questions? Do the results apply equally to all employees? Were there inherent biases in the types of pilots done, perhaps in some cases asking for volunteers (as many did) who by their nature of volunteering already signaled their desire to at least try returning to the office, and thus conveying that perhaps they don’t have the same view of the experience as someone who will need to be dragged kicking and screaming? Again, I don’t care. If the employer can choose simply because they “feel it works better”, actual evidence doesn’t matter to justify the right for them to do it. They have the right already 100% solid. Additional “evidence” that some people like is not useful to that position, it just helps with some Comms approaches.

Finally, some people have said, “Hey, wait a minute, there’s a huge health and safety issue of having people go back to interacting in the office, isn’t there?”. Of course there is. But here’s the thing. Every other sector has already dealt with the same issue. Retail stores for clothing. Fast food joints. Full restaurants. Grocery stores. Hospitals, schools, entertainment outlets, oh my. Factories. We are almost literally the last sector to consider returning, and insurance companies and banks have already gone. Along with law firms. Yeah, law firms with lawyers who might have wanted to argue or fight and knew they would lose in a heartbeat. So if someone wants to say, “Wait, how come we’re not talking about OHS”, my reaction is first that we are, all the sites have rules in place to deal with masks, distancing etc. People have had 30 months to figure this all out in other sectors, we took from their experiences, and we’re now implementing. There’s nothing unique other than timing. And in our favour is the fact that we have one of the most compliant workforces in the country, with radically high levels of vaccination even without the mandated requirement to be back to work. And almost all of those employees had to attest that they’re vaccinated. Not just say they were and move on, they had to sign a legal document at work that said they were. That’s more stringent that virtually every other sector. So people want to talk OHS? It has nothing to do with WHETHER people go back, it is just about what they do when they do.

To recap, we have three models being used currently:

a. 100% work from home, what we’ve been doing for 30 months or so;
b. hybrid model, part-time at home and part-time in the office; and,
c. 100% in the office.

We know what C looks like, we did it for years. People think it works, warts and all. So that is a viable option automatically. A has been done for the last 30 months, and management says it isn’t sufficient. So everyone is looking at B to see if we can avoid having to do A or C as the default choice.

Employees are struggling with that “employers will choose” model. And they want some say in the way it is decided. If unions ask for 5 things in their negotiations, Treasury Board will ignore anything on the WFH/RTW decision. That’s their purview, it’s not negotiable from the word go. But if all the members of the unions said to their representations, “You know, the single most important element in the upcoming negotiations is the ability to manage work/life balance aka mental health and the biggest element for that for us right now is WFH options”, then the unions could say to Treasury Board, “All our members want to focus on figuring out WFH options in this negotiation.” If that happens, Treasury Board would have almost no choice but to have SOME discussion on what some of those options might look like. What some of the terms might be. Would we get an agreement? I have no idea. But we surely won’t unless they find a way to have the discussion, and to have it be subject of real effort at a common solution.

I think any movement forward would need three key clauses at a minimum.

Clause 1: The employer has the right to decide

As I said above, it’s already true. There’s nothing that will ever move the employer from that position. The employer has the absolute right to choose the location of work. So a negotiated settlement will end up there anyway, might as well put it right up front.

Clause 2: Every position is a hybrid model

Even if an employee is doing work that is “predominantly work from home” because of some designation by the employer, the reality of that decision is that they can still be asked to attend in-person meetings, such as large staff meetings. They might be on the low-end of “hybrid”, where they work from home all the time but once or twice a year come into the office for meetings or even perhaps an IT upgrade. Some sort of visit to the office. If you even step in the office once, you’re hybrid. Just as if you were there five days a week normally, but once in a while, you worked from home on an ad hoc basis for a special project, for example.

Why is this clause important? Because it communicates two very clear things.

It clearly indicates that working from home is a valid option for managers to approve. No assumption that everyone has to be in the office every day, no assumption that WFH only happens if/when there’s a duty to accommodate solution, no default that is anything other than saying that both options — WFH and in-the-office — are valid configurations for all possible jobs. Sure, some positions, like sorting mail onsite, will be virtually impossible to do at home. But it sends a message that everything is viable, there are no assumptions being made. However, the second thing it says is that we are never going back simply to the way things were. We have a new model that works. Not perfectly, but again, it is viable.

And it transforms the question from asking “is it WFH or in-the-office” to focusing on what is actually important — what are we trying to accomplish and what’s the split in models that makes that happen?

Clause 3: Employees have a right to stability of location

For me, this is the most important issue of all. As an employee, I have no real say if the employer wants everyone back in the office. Nor do I have any say in if they say, “Okay, everyone can work from home”. Clause 1 and 2 allow that flexibility, which is already in place anyway (for Clause 1 at least).

But what isn’t viable or sustainable is for an employee to work out with a manager a workable solution for the work, say in the office 1 day a week, have performance agreements that reflect satisfactory performance, a new manager arrives, and suddenly everything changes. Or a new Director, Director General or ADM comes in and says, “Nope, that’s not how I work”, everything changes…and there is no protection for the employee from what they’ve worked out previously. That may be the reality i.e., it sucks to be them, but I think there are ways to give management what it wants/needs while still improving predictability for employees.

I think the solution is to modify three things — the location of work in the letter of offer, add a clause to the letter of offer about the mode of work, and strengthen internal mechanisms regarding telework agreements.

a. Location of work in the letter of offer. The unfortunate reality is that a lot of people have signed LoOs in the last couple of years with very little attention paid to the location of work. If the position was in Ottawa, traditionally, but the employee being hired was located in Toronto, lots of departments and HR officers approved the location of work as Toronto without really any oversight to that decision. In many cases, departments did this thinking that it would mean they could recruit and work anywhere, no need to wait for approvals or direction from TBS or elsewhere, and without any real thought as to what that means for the long run. Now as hens are coming home to roost, some departments are finding out that the person in Toronto has a right to go work in person at a local office. Whether there was a space for them or not. Some departments don’t have ANY offices locally in some cases. So now that department is scrambling to figure out how to provide them with an office locally, often by making arrangements with other government departments who DO have local offices and with costs attached.

But the location of work affects way more than just whether someone has access to an office. It includes:

• In the event of an emergency, what office location do they report to for work? If there is some sort of emergency service they have to provide to Canadians onsite and in person, where do they go?
• If someone has to go into the office for a meeting, where is that office located? Is it 300 miles away? Or is it local?
• If your cities are different for where you work and where your boss and the rest of the team works, and there’s a team meeting, who pays for you to be there? If your work location is Ottawa in the letter, and you happen to live in Ottawa, we don’t pay for you to come into the office. If you live in Kingston, 2 hours away, there’s no difference — your work location says Ottawa, if you have to go to Ottawa, the financial rules say you have to pay your own way there. Even if you live in Calgary and your work location is Ottawa, and you have to fly in for meetings, the official rules say you would have to pay for that yourself. Which is obviously ludicrous, but needs to be addressed when LoW is decided.

Note too that if someone changes a LoW, there are a whole bunch of rules that kick in, maybe for good reasons or maybe for bad. We just need a common rules-of-the-road approach across government that addresses ALL of the issues and so the employee knows what they’re signing.

To me, the question is simply this — if someone said “everyone has to be back in the office five days a week”, where would that office be? Would it still make sense for the person to be in Toronto? Calgary? Windsor? Or would they need to be in Ottawa if the rest of the team is there? This has always been a question when creating “regional” positions and we need to be absolutely clear with the employee what they’re signing with the letter of offer.

In addition, I think there should be some restrictions on the ability to change the LoW. There are already restrictions, but those were created in the era where you were obviously moving boxes and people around. Now, if an employee is living in Fredricton, and management wants them in the office in Calgary once a week, it’s not necessarily obvious that we’re doing something significant. If you have to be in the office in Calgary, that’s a pretty significant impact on you. So I think it is reasonable to say that changes to a LoW have to be approved by an ADM as a minimum and there should be a minimum of six months notice.

I’d love to say a full year’s notice, or that it has to be signed by a DM, or approved in consults with the unions, but these are management’s prerogative to organize the work. All I’m trying to do is ensure the LoW is done properly AND that the employee has at least some time to try and find another position if they don’t want to relocate.

Note too that the LoW is also what triggers expenses if/when an employee moves. Which works AGAINST the argument a bit. Let’s say I’m running an office in Winnipeg, I’m open to someone living in Halifax, and so I put the LoW as Halifax. If the employee later voluntarily wants to move to Fredricton, do we have to change the LoW? If so, they’re entitled to moving expenses…which the government wouldn’t pay for, simply because you decided to move for personal reasons. We’ll pay if WE move you, not if you just decide to move on your own. Your decisions can’t create costs for the government, that’s black letter law. It’s not pretty. If it is “work anywhere”, then the LoW should say that — “variable”. Not tied to a specific locale.

But the clause should address a) which LoW will be the default; b) what happens if the employee moves on their own; and c) who can approve a change to that approach within what timeframe. The employee needs to know what they’re signing, it’s a basic component of contract law. We need a meeting of the minds as to the contract being signed, that they’re agreeing to the same thing. So we need to spell out what the implications are of the LoW.

b. Mode of work. Similar to the above, the mode of work will work in tandem with the LoW clause. Up until recently, we’ve always assumed that MoW was just in-person at an office somewhere in the LoW. But with the change in approaches available, I think departments should have to specify for all jobs what the expected mode of work is intended to be. I mentioned in an earlier post that some departments have done varying degrees of detailed analysis of positions by type of work. For example, there are some that are predominantly in the office, like mail sorting. If so, the MoW should say that — predominantly onsite.

If you’re doing financial files, and you’re predominantly at home, maybe it says that. But personally, I think that is too complicated. I vastly prefer the same entry that is in PeopleSoft – onsite, hybrid fixed or hybrid variable, or at home.

Yet if we acknowledge above that all jobs are hybrid to SOME degree, then I think it should be more about giving ranges. All agreements prefer clearly defined categories, so here are my base suggestions to keep it manageable:

HYBRID TYPE 1 – AD HOC (predominantly at home but in office for occasional meetings, all staffs, etc.);

HYBRID TYPE 2 – 1 or 2 days per month;

HYBRID TYPE 3 – 1 or 2 days per week;

HYBRID TYPE 4 – 3-4 days per week;

HYBRID TYPE 5 – 5 days per week (i.e., full-time in the office).

Type 1 (or class 1) will be the most flexible and type 5 will be the least flexible. Details of whether it is fixed specific days or variable days can be worked out in a Telework agreement and Peoplesoft on an annual basis, in my view.

Because what is key to the employee to be able to plan their life is what type / class of job it is. And to know that someone besides the current manager agrees that all jobs generally of that type are class 3 or class 2, for example. That the commitment from the organization is solid enough for them to say, “Yep, we think that type of job is Class 2 or 3” by default. If they want to change from that, it requires a change to the actual Letter of Offer approved by a DG, not simply a stroke of a pen on a Telework agreement by a manager or Director. A clear recognition that someone has made a decision to make a change that has implications for staff that is significant enough that it is replacing an existing LoO signed by a Director and thus requires a level higher to “correct” or “amend” it.

This will be a huge challenge to reach some form of agreement. Unlike the LoW, I think the compromise is who has to approve. Currently, with simply a TeleWork agreement, they’re good for up to a year, but they require nothing to cancel them. A director or DG or ADM could send out an email saying, “Change of plans!” and they’re cancelled. Which means they aren’t worth the digital bytes they’re comprised of, and employees can’t rely on them at all.

If we beef the clause up by adding it to the LoO, there’s SOME stability. Not tons, but a reasonable compromise. Management can still do what they need to do if they need to make changes, but it isn’t unfettered as to “how” it is done.

c. TeleWork agreements. As I mentioned above, I think they should negotiate a clause that modifies the Letters of Offer to add some enhanced discipline to the Location of Work and add some stability to the degree of hybridity in the default / expected work arrangement / mode of work.

For the TeleWork agreements, I think there should be more of a compromise and flexibility between employee and manager to set up which days are the best choices. Maybe it’s a top-down / bottom-up approach like Global Affairs with some days chosen by the management and others chosen by the employee. Or it is employees choosing together with popular vote / majority rule on which day will be the day chosen.

But if the # of days is relatively set by the type of position / mode of work, the rest should be as flexible as possible with the employees to accommodate the work. In this regard, it is giving stability to the employer on when people will be in or not.

What remains to be discussed over time

Those three clauses above would take months for people to work out, and it doesn’t mean we would have a solution. At some point, TBS might say, “Yeah, we’re at an impasse, we’re going to go with what we planned” and we’ll have to revert to traditional “pay and benefits” discussions. But my whole premise to this approach was that employees would tell unions that this was their most important issue and that they wanted the union to find a way to make it work. TB isn’t an idiot. Imposing a solution is never the best way if they can achieve the same thing through a negotiated settlement that gives everyone most of what they want. Heck, if I was TBS, I’d say “Let’s try it for 3 years” and see if it works. A pilot initiative if you will. I’d hate to see it limited to a single department or two, but that might be the way forward to try it.

But there are several other issues that will still need to be worked out, just not for negotiations. More like ongoing collaboration.

Managing career change. I already mentioned what could happen above when the Location of Work or Mode of Work or Telework dates had to change. There are ways to manage all that, with ADM or DG or Director approvals, etc.

But what will be near impossible to address in the short-term is what happens when an employee is, for example, Class 2 at Fisheries and is offered a job at Transport that is Class 3. In effect, it would be saying that the employee would have to increase the number of days in the office. For individual employees, the reaction is generally swift and immediate. “Nope, I am Class 2 and I should be able to stay that way as long as I want!”. Except that’s not even remotely reasonable. The jobs are different, they’re classed different, the employer is not going to give someone a commitment in perpetuity that whatever job they do, they will be able to do whatever they did in a previous job. What is reasonable is if someone in Class 2 going to Class 3 has any negotiating room with the manager to ask for Class 2 and to have it at least considered without rejection out of hand.

Now, don’t get me wrong. Virtually no manager wants to have to deal with this issue every time they do staffing. So the default will be “Hey, it’s class 3, we’re not changing it unless there’s a compelling reason to do so.” I think if someone wants to change the Class 3 down to Class 2 at the new job, to “match” what the person had before, that manager should have to have it approved by at least a DG. I’d prefer an ADM because you’re changing the basis of the letter of offer. It might be in the employee’s favour, but it should be up to the employer to decide.

And I think ANY deviation from the departmental norm should be inherently red-circled. This would mean that if I hire Mary into a Class 3 job, but because I really want Mary and she has a good reason for it to be Class 2, I can agree to that if my ADM approves, BUT if Mary leaves and John comes in, it is not automatically Class 2 again. We would still need permission for John to have Class 2 instead of Class 3, because that is the departmental decision. Nobody should assume that a “negotiated amendment” continues in perpetuity. The ADM can always change it anyway (as per the clause above). But I’m getting ahead of myself. The unions and TB would still have to discuss what this looks like, how it could or should work, and they would also have to consult with the Public Service Commission to ensure the integrity of the process.

Another challenge will be basic performance measurement. It will be difficult to enumerate, but we can expect that if we have a hybrid model, an employee may perform differently when working from home (mostly vertical transactional files) or in the office (more horizontal relationship building). If so, the commitments and monitoring, types of deliverables, and the method of measurement may need to be adjusted. One issue that won’t be clear is what happens if Mary is supposed to be in the office on Tuesdays and you get to the end of the year and discover that Mary seems to be sick 50% of the time on days when she needs to be in the office, but only 1% of the time the rest of the time. How do you manage performance in a hybrid model if the employee is using sick days to avoid the hybrid option? Is that grounds for discipline? Is it grounds for termination? Is it signs of a need for possible accommodation? Or is the person simply not able to do a Class 3 job and needs to find something new? Those options are all harsh interpretations of a much bigger ball of wax, and to be honest, managers are not equipped to know how to handle these situations yet. There are no new training modules that deal with that, or previous examples with Labour Relations of similar challenges. One area of interest for discussion might be if Performance Agreements should have separate ratings for certain elements for in-person or at home.

For Duties to Accommodate, and I’m thinking here more about traditional DTA issues (not someone who has concerns about COVID or going back to the office after 30m and wants an exemption to fight the decision to RTW, tribunals have already ruled it doesn’t apply unless one can show a substantive medical condition including psychological conditions that can incapacitate you), there will be challenges in figuring out what this means if someone goes into the office. What does it mean for a workspace at the office? What does it mean for the interactions with Class # jobs? If you’re on DTA and can work in the office 2 d a week, but you’re in a class of job that says 4 days a week, how is that resolved?

As my last issue, I want to flag the risk of proximity bias. If you don’t know what that is, you’re not alone. The potential for proximity bias crops up if, for example, you work in an office as a manager and 4 of your employees are in the office 4 days a week and one is Class 1 and only in the office 1 day a quarter. For those employees who are in the office 4 days a week, i.e., you’re in close proximity to them more, will you naturally / implicitly rate them higher? Will you give them the “good files” simply because they’re literally right in front of you?

Some people assume this bias is something “threatening” or intentional. Some employees reported recently that a senior executive said in a town hall that people working from home would not get promoted. They interpreted that as a threat, but it may have simply been a realistic prediction. The literature out there looking at these issues says that proximity bias is a real risk. People in person are often perceived as working harder than someone at home. People with DTAs to work at home have generally reported that career mobility has been limited by the DTA and that they aren’t considered for acting assignments as often, etc. Note that if everyone is in the office, all’s fair; if everyone is WFH, again, all’s fair. But as “evolved” as I profess to be as a manager, it was a challenge to ensure that the employees I had WFH due to DTA back when we were all in the office got all the same supports and opportunities that went to those who were in the office.

The example I have given in the past is to think of a last minute request coming from your boss. It gets dumped on you, you have someone on your team who is physically right there, you can have a quick huddle to figure out what to do, it’s very collaborative, you solve it, and the crisis passes. Did you even think to call the person at home and ask them to help? Or did you use the person right in front of you? The cliché is “out of sight, out of mind”, and as I noted above, the risk of proximity bias is real.

So how are we going to help manage that? No one knows. Perhaps the unions and labour relations people could work with TBS to come up with some new ideas, share research, find ways to help counter that type of bias. Tricks and tips, for example.

I have no idea if it will work

I say “tell the union” and get them to try and negotiate it as the most important issue. If we were a year ago, people might have been able to put something in place at the departmental level. Now? That ship has probably sailed. I shared my views about cooperating with the department and showing that hybrid can work, mainly in order to stave off possible decisions/preferences to go back to 5d a week.

We have an opportunity and well, we’re squandering it worrying about whether the research shows it’s better or not. Nobody cares. That decision was taken already. Now we have to figure out how to hold on to the gains we got through initial WFH and that we want to retain now in hybrid options.

The only window I see to open is with the unions. And I say that with full irony as I normally hate unions. As a member of PSAC at the time of pay equity, I saw some of the crap they pulled in negotiations and felt they were the parasitical alliance, not the public service alliance. The tactics sure didn’t look to me like the basis for good public policy on pay equity (and it seemed to come back and bite other parts of PSAC later for some of the translator and techno crews). Now that I’m in CAPE, I like the unofficial slogan, “We’re cheap and we’re not PSAC”.

In the end, it’s a system-wide problem that requires a system-wide solution. And the only groups that talk to TBS about system-wide issues on behalf of employees are the unions. Their track record generally consists of pay equity (long and drawn out and made some areas worse) and Phoenix (the unions may not have implemented it, but they sure didn’t show much leadership with the file either).

So I don’t know if the unions can help lock in some of the gains. I just know they’re the only ones who can nudge TBS in that direction, unless we suddenly see huge savings from WFH options.

My trilogy turned into an ennead (aka a group of nine, who knew?) but that’s it for me. I’m tapped out.