Labour and Employment Lawyer on Vaccine Mandates and Back to Work Polices: Michael Sherrard of Sherrard Kuzz

Leon sits down with Michael Sherrard,  recognized as one of Canada’s leading employment and labour lawyers, to talk about the return to work, both in terms of legal mandates but also social and moral ones: how do we best support our employees health and safety, while seeking to build company connection? Michael also wades into the murky waters of vaccine mandates and whether or not such measures are needed or legally possible. 
Acclaimed for his broad range of expertise and strategic excellence, Chambers Global® says “Michael draws praise for satisfying the needs of even the most demanding clients and his specialist knowledge of union contract and negotiation issues where he is described as “exceptional” and impresses with his “phenomenal” work.”

Michael is frequently published and asked to chair or speak at international and national conferences. He is the recipient of several awards including the Construction Institute of Canada’s Chancellor’s Award of Excellence, University of New Brunswick Alumni Award of Distinction, USports Lester B. Pearson Award, and Canadian Franchise Association Volunteer Leadership Excellence Award. 

Sherrard Kuzz LLP is one of Canada’s leading employment and labour law firms exclusively representing the interests of employers. Recognized nationally and internationally our team is consistently named among Canada’s Top 10 Employment and Labour Boutiques (Canadian Lawyer®), Canada’s Leading Employment & Labour Law Firms (Chambers Global®, Best Lawyers®, Who’s Who® and Legal 500®) and Repeatedly Recommended (Lexpert®).

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Episode Transcript

Leon Goren (00:00):
Special thanks to focus asset management for
helping us be you today's PEleadership's snippet podcast
Welcome to our snippets podcastI'm Leon Goren, CEO an
president of PEO leadership Norh America's premier peer to pe
r network and leadership advisoy firm. Today we welcome Micha
l Sherrar, managing partnert Sherrar - Kuzz. Michael

(00:21):
as been a longtime memberf my peer advisory board Pat
4 and a huge resource to many ofour PEO members over the last
decade. We've been very fortnate to have him by our sides a
we all had to deal withOVID-19 government legisla
ion and restrictions, changeso those restrictions. And of
course, their implicationto our businesses. Michael's b
en very busy, busy, to say thleast. But he also has a fantas

(00:44):
ic life outside of the law proession. In fact, I used to spe
d hours with Michael on the corrdors of a typical Olympian wai
ing for kids to swim their race, and I mean hours because t
ey swim every two to threhours. Michael's married to
Rhonda, also an attorney woring for sure, sure. arquus.
nd they have two daughters.
ichael, it's great to have youwith us today. Leon, thanks fo
having me. Good to see you. I's good to see you as well. So I

(01:06):
thought we kick it off. And I'e known you for quite a while
So pre COVID. Michael, you in te firm, you are working, you'r
always working always craz. We're always strategizing t
ying to figure out okay, how doe build this? How do we leve
age her hours reduced hours? Nowe get hit by COVID. And I
now the last 15 months, youuys are have been insane. You'v

(01:28):
almost had to ramp it up toanother level. And I'm curious,
ctually how you did that. Cuz Inow you guys are like you're wor
ing all the time, I would

Unknown (01:40):
Yeah, it's certainly been busy. So we'd say we've
been really fortunate. Some ofus would say for lawyers, as
long as you've got a laptop anda phone, you can function. So I
yeah, I, we have been busy. Whenwe look back that one of the one
of the collateral benefits, ifthere's any good things that
have come out of COVID is thatwe've really jelled as a team,

(02:03):
we have, we have an internalcall every second day at noon
for about anywhere from 15minutes to an hour, depending
upon when what's going on andwhat the issues are. But we've
had a significant amount ofpeople from the firm we'll have,
we'll have 30 people on thosecalls at any given time, trying
to brainstorm and in sort ofexchange experiences, so it's

(02:24):
really helped us get to bestpractices, briefing notes. It's
really been a team environment.
And it's really brought ustogether, I think in terms of
people who participate in allthose efforts.

Leon Goren (02:37):
When you eventually all come together, or maybe
you're not going to cometogether, what is the back to
work look like? Do you as a firmgoing forward?

Unknown (02:47):
I yeah, I think I'd start by saying, I'm not sure.
I'm not sure it's gonna looklike anything we imagined back
in March of 20. I don't see usgoing from 100 miles an hour
outside the office, to everybodybeing back in anytime soon. I
think, as you've heard everybodytalk about some kind of hybrid
model. Because the other part ofthis, and it's probably the same

(03:11):
for a lot of the members that Iget to kick things around with
in pack, four, and some of theother pack group's talent can
walk with its feet. So there'san interesting balance here in
terms of, if you've let peoplework from home for let's call it
12 to 18 months, your desire tohave them all return and be face

(03:33):
to face 100% of the time, Ithink is going to be
challenging, and I think it'sgoing to be challenging for a
law firm or professionalservices as well. So, you know,
the first thing we're gonna dois, brainstorm, give people lots
of notice of our intention to dosomething different than we're
doing today. And then well, Iwant to be consistent with how
we do it, you're still going tohave to deal with

(03:55):
individualizing, some of thecircumstances that you meet, and
I think all of us are going tohave to do that. Because again,
to have professional servicesright now, compensation is
moving up. There's a war fortalent. Young people are getting
phone calls every second weekfrom headhunters. So I think
we're going to be have to becognizant of those kind of
things, as opposed to simplysaying, everybody's got got to

(04:17):
be back at work on Monday. Ijust don't think that's in the
cards for a lot of us.

Leon Goren (04:23):
It's funny because I grew up in a professional
service from because I came upthe CIA route and and the most
memorable times were the timesyou when you first start right,
the first few weeks and you sortof get on boarded and meet
everyone, there was a socialelement. And you actually
learned a lot, right? Becauseyou spent time with individuals
in the law firms that would bethe same I mean, how do you work

(04:47):
that into your even a hybridmodel? Because some people are
there, some people won't bethere. What are you going to do
with your new recruits?

Unknown (04:54):
So a good example for us is we have a fairly strong
summer student program so kidswho have just finished first
You're law school or second yearlaw school. And so when we on
boarded them this year, it was acombination of some sessions on
zoom like we're doing now. Andsome sessions spread out in a
boardroom, with all those kindof peepee, safety precautions

(05:15):
that you're used to that we'veall had to figure out,
distancing and hand washing andmasking and so forth. But again,
it was a bit of a combination,and it was giving people a
choice. So it's, it's far fromwhat we're used to. But you
know, students as an example,and maybe that's the younger
generation who are living in thesmaller condos, they were

(05:36):
anxious to be on site, anxiousto start to meet people face to
face. So I think we found a wayof continuing hybrid meeting on
site where possible, and thengiving some people choice. That
was the luxury we lived in tobegin at least this most recent
summer onboarding.

Leon Goren (05:56):
Yeah. Again, I know in the early days, when COVID
hit, you were a huge resourcesto resource to us. And then in
the middle of you were a hugeresource. I know you've been
dropped into groups today. IfI'm thinking now, like we're in
the summer, but come this fall.
You think thinking aboutbusiness owners? Are those
running these businesses? Whatare two of the three things that

(06:18):
you think that they need to beaware of in regards to employee
where they, you know, workingwithin the bounds, because
there's so many questions aroundlegal obligations and how you
treat your employees, forcing,you know, can you force them
leaving to come back to? Allthese questions are so new? I'm
just curious, because you'reright on the front line, what

(06:39):
are some of the big things thatare, we should expect or be
thinking about today?

Unknown (06:45):
I think, let me give you two or three, the first one
in my mind is something we callthe duty of care. I think
Canadians get caught up in theOntario Employment Standards
Act, the British Columbia laborrelations code, Ontario's Human
Rights Code, duty of care sortof is an umbrella on all of

(07:09):
these and duty of care, we thinkof what does an employer owe the
employees in whatever givencircumstance the employer might
put them in. So when whenemployers are thinking about
ramping up and getting back towork, physically, and so forth,
I think there's a legalobligation that comes from this
duty of care, we all have these,you know, comply with the

(07:32):
Occupational Health and SafetyAct comply with public health
directives. But over theoverarching piece is duty of
care, and what is the standardof care in the given
circumstance? So that's my legalpiece. My piece is, we have to
convince people, I thinkemployers have to convince
people that we want you to comeback in some hybrid form. And

(07:54):
we're going to keep you safe.
We're going to do everything wecan to make sure you're safe. So
that that's what our policiesaround vaccinations, what are
our policies in the office? Asthings seem to free up a bit? Do
we still have to wear masks? Dowe still want to have hand
washing stations? Do we stillsocially distance? What am I
going to do with a person whousually travels? What am I? What

(08:16):
am I obligations around my myduty of care for that person who
I'm going to send to Asia, theUS to Mexico to British
Columbia? And so I think foremployers, that first thing is
duty of care. How do I keep themsafe? And then for every leader,
this I think this for me, it'sthe most uncomfortable thing? I

(08:36):
think leaders have tocommunicate, even if they're not
positive of the exact correctanswer. I think some of us want
to, I want to get it rightbefore I say anything. And I
think that vacuum, the amount oftime it takes to get that answer
perfect, hurts us. So I thinkleaders have to be out there
communicating and listeningeffectively, even when they're

(08:57):
not yet comfortable. Because thevacuum hurts you more as an
employer, I think. So there's acouple of things to think about.
Watch the duty of care, lead,communicate. And then the other
one I've said before, this onesounds a little bit. I don't
know where it fits. But for me,it fits. leaders have to have a
whole bunch of patience, and bereally good listeners in this

(09:21):
time. And the only way you cando that, from my perspective is
if you treat yourself well toyou find a way to make sure
you're rested. And that maybesounds small, but I find if
we're not rested and taking careof ourselves, it's very hard to
take care of others. And leadersreally need to think about
Where's your balance is arethere some things you can get

(09:41):
back to whether that's cyclingor going to a gym or watching a
movie or yoga, whatever you usedto do? Is it possible to get
back to some of that so thatwhen you get that, you know the
same question for the 20th time.
Will you have the patience thatyou need to have

Leon Goren (10:00):
coming on, I think you just hit it over that hit
the nail right on the head,because I think it's true. I
think all of us have gonethrough this 15 months, not just
your employees, we are one ofthose individuals as leaders
have gone through and you'reright, everyone is tired. And
when you think aboutcommunication and listening, the
more tired You are the lesspatient tip patients you

(10:21):
typically have. And so I agreewith you 100% need to take care
of yourself first. And thensecond. Also think about how
you're going to take care ofeverybody else. The one last
question, I don't know ifthere's the right answer, but
you open the can with thisvaccination thing. And I know

(10:42):
you can't Can you really youcan't enforce people having
vaccinations coming back to theworkplace here in this country?
Can you? Or can that be a policylike I heard Western saying, if
you're gonna live in residence,you must have a vaccination. But
that's different than yourworkplace environment.

Unknown (10:59):
Sure. The the think the advice we've been giving is you
can have a policy, and youshould have every employer from
my perspective on thisvaccination piece should have a
policy about it. And you canstart with the concept of a
mandatory policy. But I think inpractice, that's going to be
challenging, I think there'svery little support in our

(11:20):
country, let alone in Ontario,to have somebody as a condition
of employment, be mandatorilyvaccinated, it's one thing to
get them tested, tested rightthere, the rapid testing or a
PCR test. It's another thing tonow say, I'm going to put
something forcibly inside insideyour body as a condition of
coming to work. Our governmentshaven't yet given given any

(11:42):
guidance that suggests they'regoing to say it's mandatory.
We've seen a little sliver inthe long term care industry,
because they would say thevaccination might be a bonafide
occupational requirement, ifthey get some scientific
background to it. I don't thinkOntario employers or Canadian
employers are going to have thebenefit of mandatory. But I

(12:03):
think what behooves us, and I'veheard some of our members
thought, right, our pathsessions, really, best practices
come out of the ideas we hearfrom our peers. And I still
remember somebody saying, we'regoing to use we're going to
advertise and educate andinfluence. And we're going to
let our workforce try to do thatin a respectful manner, as well

(12:23):
spend all our energy trying tobe that advocate. I walked into
a gym the other day, and itsaid, if you go get a vaccine,
we're going to give you twoweeks of free membership. And
you know, so people are beingcreative, and trying to Joel and
influence as opposed to mandate.
I think in them, the last thingI'll say is, at the end of the
day, if somebody wants to cometo the workplace, and they're

(12:47):
not vaccinated, I think I thinkone of the things that will be a
long term issue is we will stillhave some what we call p PE,
responsibilities in terms of howwe keep everybody safe. So it's,
and you look at the end of theday, right? The first thing
people say is, what aboutvaccination availability? And
and Well, I know we've improvedand it's ramping up, I still

(13:09):
think I heard in the last 24 or48 hours, some shortages of
specific kinds of vaccines. Soyou have to take that into
consideration. So I think hedoes everything he can to
educate an influence as opposedto mandate or dictate

Leon Goren (13:27):
my goal. That's great, thank you so much for
just joining us and sharing yourinsights with us today. That was
awesome. Leon. Thanks foreverything you do. I appreciate
being part of the group. Whilewe love having you part of the
group. If you're interested inour live webcast, the way
forward live and or any othersnippets please take a moment
and visit us at PEO dashleadership comm you'll find into

(13:49):
on our site various pre recordedwebcasts which include guests
such as Morgan housel, Professortennis Stein, Rob chestnut, Dr.
Greg wells, the list goes on.
We've covered topics such asMental Health Leadership, the
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(14:10):
look at that eight week trialand see if you want to give us a
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forward to seeing you againshortly. Take care