Remote Work: Rights and Obligations In the Workplaceachkarlaw-admin
As the pandemic (hopefully) comes to a close, many workplaces are considering continuing remote working in some form. For those who already have, new challenges have surfaced surrounding remote work and the associated rights and obligations in the workplace. When shifting your workforce to go remote, it is wise to consider the rights and obligations involved in remote working.
Employment Standards Legislation Continues to Apply
Employment standards legislation contains rules that apply to most workers relating to termination and overtime pay, among others. These provisions continue to apply to employees working from home.
Some modifications to previous procedures may be necessary, to ensure they make sense for those working from home. For example, it is easy to lose track of time while working from home and perhaps work beyond a set limit that may apply. As such, it is important for employers to make clear to employees how any existing procedures around seeking approval for overtime, punching in, and the like will apply to those working from home.
Health and Safety
One interesting matter that working from home has brought to the forefront is the scope of application of health and safety legislation. What happens if an employee working from home sustains an injury that occurred during the course of his or her employment?
Ontario’s Occupational Health and Safety Act (“OHSA”) broadly defines a workplace as “…any land, premises, location or thing at, upon, in or near which a worker works”. This definition does not preclude the argument that an employee working from home is covered by OHSA.
However, there is a statutory exemption that excludes work performed by the occupant in a private residence. How this exemption applies to remote employees workers, especially in today’s context, remains unclear. As such, an employee who is injured while working from home may be eligible for benefits under applicable worker’s compensation schemes.
Human Rights Continue to Apply
Although there is some uncertainty about how health and safety legislation may apply to the remote workplace, it is readily apparent that human rights laws will continue to apply. That means the employer must continue to maintain a discrimination-free workplace. So, if an employee requires accommodation for any protected characteristic, the employer has the duty to engage in the accommodation process and work towards a resolution.
Privacy Rights of Remote Workers
For most if not all jobs, it is critical that those who work from home ensure that their technology is physically and electronically secure.
A check-in with the IT department is recommended to ensure all security software is up to date. Even with the most robust security system, it is far too easy to retrieve sensitive information where the worker is not careful. It is best practice to lock your device when you are away from it and keep it in a secure place. Particularly if you work in a shared space.
Where your work device is stolen, an easy-to-crack password can create tremendous problems and possible liability for the worker. For example, it could result in stolen intellectual property and releasing of confidential information. Some workplaces impose tracking chips in their equipment, but this is a pricey solution.
If you are an employee working with high-priced workplace technology in your home, it is a good idea to check with your employer about possible liability if it malfunctions or is stolen.
Another controversial area of the virtual workplace is monitoring employees working from home. Employers may be increasingly concerned about productivity as they cannot check in on the employee in the same way as when sharing an environment.
Unfortunately, there are not many clear rules that outline whether an employer can monitor employees through monitoring devices and/or installing software. Cases have been litigated as to the reasonable expectation of privacy on a workplace device, but these principles are less clear in relation to monitoring employee productivity.
Remote Work Policy
With so many uncertainties arising in the work-from-home context, it is advisable for employers to draft and implement a Remote Work Policy.
Having a comprehensive policy can enshrine a variety of rights for the employer, while creating clarity for the employee. For example, such a policy may include provisions relating to:
- when an employee may be requested to return to the workplace,
- where a work-from-home employee can physically conduct their work (for example, can s/he work outside of the country?),
- which expenses will be reimbursed,
- details of what devices may be monitored and how,
- consequences of violating the policy.
It is also a prudent to engage an employment lawyer in the drafting of a Remote Workplace Policy to ensure it is enforceable and complies with the applicable laws.
If you an employer and need assistance drafting a Remote Work Policy, or an employee and have questions pertaining to your rights and obligations, our experienced team of workplace lawyers are ready to assist. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to help.