The 26th UN Climate Change Conference of the Parties (COP26) will take place in Glasgow starting from Sunday 31 October. COP26 will bring parties together to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change. While governments, NGOs, institutions and businesses are preparing for the conference, we wanted to take a closer look at the impact of climate change on the workplace both now and in the future.
People across the planet are all exposed to climate change to different extents, and the same is true for the workplace. Workers in some parts of the world and industries are already seriously impacted by the direct consequences of climate change. Their work lives are becoming increasingly difficult as their jobs expose them to significant health and safety risks, such as heatwaves and flooding. A recent report by the UCS, “Too Hot to Work”, which focuses on the US, illustrates this situation. But the climate emergency won’t stop there. It is reasonable to expect that most, if not all, workplaces around the world will be impacted in the near future.
Global employers, like all other stakeholders, have a responsibility which is twofold. First, to prepare for what is yet another crisis affecting the workplace and to ultimately provide a safe environment for workers. Second, to take proactive steps to ensure that their relevant business sectors makes their green transition and become more sustainable.
In this blog post, we start exploring the extent of the employer’s duty of care, how HR policies, changes in management and workforce behaviour may drive change, and how to make the workplace more sustainable. We also look at the labour and employment aspects of the green transition. Given this ever evolving and expanding topic area, this is a first attempt to identify the many HR legal issues employers need to tackle in relation climate change.
Preparing for the crisis - lessons learned from the Covid-19 pandemic
The Covid-19 pandemic is largely viewed as an accelerator for change. It can also be viewed as a ‘practice run’ for the next crisis, climate change. Many of the challenges global employers were confronted with when forced to deal with the consequences of the pandemic over the past 18 months are indeed similar to those arising from the climate emergency.
The pandemic brought into focus the employer’s duty of care, in some cases pushing its boundaries far beyond what was traditionally considered an employer’s responsibility. Employers were and are still frontline in dealing with the pandemic as many Governments are playing catch-up: employers were required to be quick, proactive, and creative in implementing protective measures from February 2020 onwards and were forced to deal with the myriad legal issues that came alongside those measures. Temperature checks and health questionnaires many businesses put in place in the early days of the pandemic and their related data privacy issues is just one example. When official guidance came in, it was often impractical (such as social distancing in assembly lines) and access to personal protective equipment wasn’t easy because of public procurement issues. 18 months on, the situation has slightly improved and initiatives such as the EU Covid pass have helped, but employers continue to face these issues head on and are often isolated.
The same is likely to happen with the climate crisis: there are health and safety laws here and there looking at protecting workers from extreme heat and other climate-related issues but unfortunately, no comprehensive approach as yet.
This time round, employers will be better at developing their own policies, building on their experience of managing the pandemic. Such policies should include adjustments to indoor workplaces (cooling, additional breaks, supply of refreshments, adjusted dress code and more) and to outdoor workplaces (adapted working times to avoid high heat for those working in the construction and agriculture industries etc). This is easier said than done but there isn’t much choice for employers other than to find a way to cope with these issues.
Where relevant, employers may also want to take another look at their agile/flexible working policies. While it might be tempting to look at climate change as another reason to favour agile working and have workers working from home (because it reduces commuting and thus carbon emissions), not all workers – as confirmed during the pandemic – thrive in remote working environments in the long-term. This can be either because of the lack of a dedicated working space at home or because of the lack of office equipment (or both). A few countries have started looking at this issue (read more in this blog post), but most are late in providing a clear legal landscape for prolonged remote/home working including health, safety and finances, leaving it up to employers to take the initiative. In some sectors, employers may also want to look at a more decentralised model whereby they operate through a network of smaller office spaces rather than huge campuses, so as to reduce commuting, or look at moving production facilities to cooler areas.
It remains to be seen what workers will want: more home working as they move further away from city centres (for better air quality or any other related reason) or more office working as they seek to reconnect with colleagues post-pandemic and resume their paused social lives?
Just like during the pandemic, the vaccination of employees might become topical, given that immunisation against widespread diseases arising from the climate emergency can be expected. In this context, employers will have to re-visit discussions on whether they can impose or encourage vaccination (or treat non-vaccinated workers differently), by analysing their duty of care, core human rights (like privacy and the right to life) and jurisdiction-specific employment rights (like discrimination).
Next to the discussions around the employer’s duty of care, the pandemic was also an opportunity to redefine the so called “right to withdraw” or “droit de retrait” as it is called in France, ie the right for a worker not to attend the workplace because of serious health and safety concerns. There is no doubt that this concept will give rise to more discussions in the context of the climate crisis.
Separately, many employers benefited from wage subsidy schemes during the pandemic. These schemes are, in most places, now coming to an end. Another question is whether the pre-pandemic regimes, if any, will resume and whether they will apply to climate-related circumstances such as extreme temperatures or flooding. There is certainly work to do here for business associations in raising the issue with local governments.
Finally, climate-induced migration will be high on the agenda of global employers, with people moving away from high-risk zones (and business operations alike). Recruitment and retention policies will certainly need to be adjusted to reflect these challenges.
Engaging with the workforce and its representatives on all the above is certainly recommended for many reasons, but also because workers will generally have a good view on what adjustments are actually needed.
Managing the green transition
Next to managing the crisis, the second responsibility for employers is to take proactive steps to make their businesses more sustainable.
Again, it will be a matter for HR policies, introducing climate friendly changes such as reducing business travel, whether locally or internationally, favouring homeworking (see above) or rewarding workers with climate-friendly benefits (financial and non-financial, eg providing or subsidising locally sourced or vegetarian meals at staff canteens).
Workers too will have a role to play. They will need to adjust their own behaviours, which may potentially lead to difficult discussions, for example if they refuse to go on certain business trips for environmental reasons. The issue of international secondments/assignments may become a tricky one as well, especially in climate-risky zones. How far workers will be able to go and whether fighting against climate change becomes a protected belief triggering protection against discrimination remains to be seen in many jurisdictions (back in 2010, the UK Employment Appeal Tribunal ruled that belief in climate change is capable of being protected under UK equality laws, but ultimately each case will turn on its own facts).
Workers may end up challenging what their employer is doing (or not doing) in relation to the climate, joining forces across the company or at industry level, possibly calling on trade unions and NGOs. Employee activism on climate change is already a feature in many workplaces as a few recent examples – including in the tech industry – reveal. Pro-actively engaging with the workforce about these issues may help, including with talent acquisition and retention.
The green transition will likely lead to more than mere adjustments to HR policies. There are already significant business restructurings arising from a shift to the green economy going on across industries and regions, leading to questions around changes to employment terms and conditions, re-skilling, employee transfers and even redundancies.
As with any restructuring, the respective positions of employers, workers and their representatives, including trade unions, may well differ, making the fight against climate change more challenging than expected, despite an obvious shared interest. Compliance with existing information and consultation requirements will of course be of paramount importance, perhaps even more so than in the past.
Similar issues may arise when looking at director and worker incentivisation, including in relation to climate conscious investments by pension funds. We will discuss the incentivisation topic in a later blog post. In the meantime, please check out this piece by our pension colleagues on sustainable pension investments.
The discussions about the impact of climate change in the workplace are still sparking, and practical and legal issues will increasingly arise as this landscape develops. Employers will need to adapt employment policies to align with environmental objectives, consider how best to structure their business to improve sustainability, and be prepared for extensive employee activism on the topic. You can continue to explore our thinking on this topic by having a look at the “People” section in Freshfields’ COP26 microsite and at our WorkLife2.0 microsite or by talking to your usual contact !