April 11, 2022

As the restrictions surrounding COVID-19 are relaxing, I have had a number of clients inquire about what, if any policies, should be in place as employees return to the workplace, especially in light of some employers, employees – or both – considering a permanent work from home situation.

Employers who do have employees work from home should ensure policies are compliant with employment laws.

To assist you in considering or implementing an extended or permanent work from home arrangement with employees I have prepared the following document which I hope you will find helpful.
Please contact me if you have any questions or for assistance working through your staffing matters.

As the restrictions and regulations surrounding COVID-19 are relaxing, I have had a number of clients inquire about what policies should be in place if employers, employees – or both – are considering an extended or permanent work-from-home situation.

To assist you in assessing or implementing such an arrangement I have prepared the following document which I hope you will find helpful in assuring your policies are compliant with employment laws.

Please contact me if you have any questions or for assistance working through your staffing matters. 

Legal Considerations for Employees Working in a Home/Hybrid Environment

Worker Safety 
Under the Workplace Safety and Insurance Act (“WSIA”) regulations, employees who are injured while working at home may be eligible for WSIA benefits. WSIA coverage and benefits are generally available where an employee suffers an accident while in the course of employment. 

Under a strict reading of the Ontario Occupational Health and Safety Act (“OHSA”), workers who work in their own private residence are not covered under OHSA.

However, with the increasing popularity of working from home and online communications (whether via email, chat, or videoconferencing), it is not inconceivable that the law would recognize working from home as being captured by OHSA. For example, an employer could still have a role in preventing and responding to “virtual” harassment. And I note, that in Quebec the Court has held that working at home does fall under workers compensation, and health and safety legislation, in the situation of an employee who applied for workers compensation after falling down stairs at home, in the course of working from home. 

To ensure that employees are working in a safe manner, employers should consider how they can provide the necessary tools for an employee to work at home.

This could include providing necessary equipment such as computers, software, and ergonomic workstations. Employers should also consider how they can appropriately monitor employee work, including work inspections.

Worker Privacy
Inspection of an employee’s work from home situation may be too invasive for some employment situations.

Employers should carefully balance an employee’s privacy considerations when they decide how they monitor an employee who is working from home.

Often, the best way to ensure that an employer is respecting an employee’s privacy is to set clear policies when it comes to using employer resources and setting expectations of an employee’s right to privacy while at work.

Providing work equipment and dedicated work software (such as email, internal chat systems) to employees generally allows an employer a greater right to monitor an employee’s work.

Employment Standards
All employment standards under the Employment Standards Act continue to apply.

Working from home often presents obstacles for employers and employees to ensure that employees are receiving their entitlements.

Common examples include ensuring employees take their 30-minute break for every five hours of consecutive work; and preventing employees from claiming they work overtime without the employer becoming aware about the hours of work an employee is putting in.

Right to Disconnect
n addition, the Ontario government introduced the right to “disconnect from work” as a new employee entitlement under the ESA.

Employers with more than twenty-five (25)  employees now have an obligation to have a written policy about this right, which should establish when an employee has the right to disconnect from work communications.

Employers should know that the right to disconnect does not include all work. Right to disconnect only pertains to work-related communication (like emails and phone calls). 

I have previously prepared a document which covers a Disconnecting From Work Policy in detail. It can be accessed at »» this page on my lenourylaw.com website.

Accommodation under the Ontario Human Rights Code
Employees who have child or elder care obligations may be protected under the Ontario Human Rights Code (“Code”) under the ground of family status. This also includes appropriate accommodation to the point of undue hardship. 

However, this does not necessarily mean that employers are required to grant every request that an employee makes for child or elder care. Accommodation requires both parties to engage in the accommodation process and find a way in which an employee could perform the necessary work without adversely affecting an employee’s child or elder care obligations. 

Making Work from Home Permanent?
I advise that employers should not guarantee that their employees will be permitted to work from home indefinitely unless they are absolutely certain.

If a work from home arrangement becomes a term and condition of employment, an employee may be constructively dismissed if an employer suddenly prohibits an employee from working from home. 

Written Policy Recommended
It would be prudent for employers to ensure that their employees understand their obligations while working from home. One of the best ways to accomplish this is to establish a clear work from home policy.

Summary
While employment-related laws will always apply to the workplace, employers should be mindful of how the ever-evolving “workplace” can affect their role in ensuring compliance with the law.

Setting expectations through clear policies will help ensure all parties understand their obligations. Employers should ensure they can properly monitor their employees from work to ensure compliance with their obligations while at the same time respecting employees’ privacy rights.