As a result of COVID-19, employers are increasingly offering employees the opportunity to work from home. As many employers have recognized, at-home work is likely a necessity given the realities of COVID-19. Even after the pandemic has passed, it is likely that Canadian workplaces are forever changed as a result. As such, we have outlined some key considerations for employers in respect of employees working from home.
Contractual and Policy Considerations
Every employee should be working under the terms and conditions of a written employment agreement. Most employment contracts contain a provision that allow the parties to mutually agree to modify the terms and conditions of employment (most require that these changes be in writing). To the extent that an employee’s hours of work or working conditions are being modified signifantly, it is advisable to obtain written consent from the employee to the new arrangement. In the absence of such agreement, and if such an arrangement were imposed on a worker, an allegation of constructive dismissal could be made.
A separate “work-from-home agreement” is also recommended. A work-from-home agreement is useful to clearly outline the respective obligations and responsibilities of both the employer and employee, including working conditions (home office, safe workplace), required hours of work, limitations on overtime, tracking hours of work, and technological considerations such as logging into the employer’s system and IT security concerns. An employee is required to devote their full-time and attention to work even if working from home. It will be important to develop clear reporting and performance management systems.
Finally, an employer should develop and implement work-from-home policies and procedures for all employees. With the prevalence of working from home increasing because of the pandemic, employers should implement work-from-home policies to ensure the consistent application of practices and procedures for employees who are working from home.
Employment Standards: employees working from home are entitled to minimum statutory entitlements, such as minimum wage, overtime pay, vacation pay and entitlement to various forms of leave, including Infectious Disease Emergency Leave. Under the Ontario Employment Standards Act, 2000, a “homeworker” defined as an individual performing work from their own homes, is entitled to a higher minimum wage ($15.40 per hour) than the general minimum wage ($14 per hour). The employer is ultimately responsible for implementing procedures to control hours of work and ensure that there are proper reporting procedures in place to ensure compliance with minimum employment standards. This may include regular reporting requirements, logging in and out procedures, and specific written approval as a requirement in advance of any overtime work.
Occupational Health and Safety: Under the Ontario Occupational Health and Safety Act, an employer is required to take every precaution reasonable in the circumstances for the protection of a worker. At the same time, the law is unsettled as to the application of the Occupational Health and Safety Act to telework. Section 3(1) of the OHSA provides that the Act does not apply to work performed “in or about a private residence, or the lands and appurtenances used in connection therewith.” However, the Ontario Labour Relations Board has permitted a reprisal application to proceed in respect of home work (although section 3(1) was not discussed in the decision). Additionally, the Supreme Court of Canada has also recently upheld an adjudicator’s ruling that the employer’s workplace inspection obligations under the Canada Labour Code do not apply to workplaces over which the employer has no control. In that case, the Court held that Canada Post did not have control over letter carrier routes and delivery locations, and therefore, could not be expected to inspect those locations to assess hazards.
Workplace Safety and Insurance: Under the Ontario Workplace Safety and Insurance Act, workers who are injured “in the course of employment” even if it is while working at home, may be entitled to benefits under the Act. An employer and employee have the same rights and responsibilities whether an employee is working at home or at an employer’s workplace. Of course, if an employee is injured while working from home, there will be questions as to whether or not the injury or illness was actually work-related. An employer should take reasonable steps to ensure employees are aware of timely reporting obligations if there is an accident. Employers may also want take the opportunity in a “work from home” agreement to specify WSIA reporting obligations and place an onus on the employee to ensure that there is a dedicated, safe work space when the employee is working from home.
Human Rights: The duty of accommodation as required by human rights legislation applies to employees working from home. The most common issue that has arisen due to the pandemic is childcare obligations because of school and daycare closures. Discrimination on the basis of “family status” (which includes childcare obligations) is prohibited by human rights legislation throughout Canada. Employers are required to accommodate an employee’s child care requirements (not preferences) to the point of undue hardship. This may require offering at-home work to an employee with no options available for childcare. It may require consideration of alternative hours of work. At the same time, an employee has an obligation to cooperate in the accommodation process and has to make reasonable efforts to explore childcare alternatives to ensure that he or she can work. With the opening of schools and daycares in Ontario, there are many options available to parents that must be explored. The pandemic is ever evolving and if there is another shut down, employers may need to consider offering at-home work as an option. In some cases, at-home work is not possible given the nature of the work or position.
The pandemic has likely changed workplaces forever. The line between an employee’s home and workplace has been blurred. This causes productivity, privacy and confidentiality concerns for both the employee and employer. Employers lose a measure of control over the working environment and for this reason, it is critical for employers to implement “work from home” policies, procedures and agreements to ensure a clear understanding of responsibilities, obligations and duties when working from home.