Playing it Safe: Employer Obligations When Working from Home
August 12, 2020
By Alex Warshick, Lawyer at McInnes Cooper,
Michael Murphy, Partner at McInnes Cooper
In the “new normal” caused by the COVID-19 pandemic, many employees have transitioned from working in-office or on-site to working from home. Statistics Canada has found that some 40% of Canadians work jobs that can plausibly be carried on from home and, as of the end of March 2020, approximately 4.7 million employees shifted to working from home. The shift in some cases has been mutually beneficial – employees no longer have to commute, and employers may now have less overhead from maintaining office space. Even as businesses begin reopening, many employees continue working from home, whether by choice or by circumstance, signaling the possible disappearance of the traditional workplace in favour of flexible arrangements, shared or rotational dedicated workspaces, and remote work.
Employers with employees working from home—whether temporarily in response to the pandemic, permanently, or on a part-time basis—should be aware of their obligations toward these employees particularly with regard to ensuring health and safety in the home workplace. Some of these obligations may be both unexpected and counterintuitive. Employers with employees working from home should consult legal counsel to ensure they are complying with applicable legislation.
Chief among the employer’s obligations to employees working remotely and/or working from home are those arising out of applicable employment or labour standards legislation. Employees who work from home are entitled to many of the same statutory rights and benefits as those in traditional workplaces. For example, rights to minimum wage, vacation, holidays, and protected leaves are unaffected by the fact an employee works remotely. In some provinces, though, there are specific obligations owed to home-based employees. Under Ontario’s Employment Standards Act, 2000, “homeworkers” are a defined class of employee who have a separate, higher minimum wage than other classes of employees, including those working in traditional workplaces. In other provinces, such as Nova Scotia, no distinction is made between home-based employees and those working on-site.
Just as employment standards legislation continues to apply to employees working from home, so too does human rights legislation. Employers have a duty to accommodate employees to the point of undue hardship. In the work from home context, this duty may require an employer to be more flexible with expected working hours for employees with ongoing childcare responsibilities in their home, particularly in light of the difficulties many are facing in balancing work, childcare, and school during the ongoing COVID-19 pandemic. Statistics Canada reported as of July 9 that 74% of parents surveyed reported being very or extremely concerned about balancing work, childcare, and school. Similar accommodation concerns could also arise for employees with physical disabilities who are required to perform their duties from their homes and may require additional support to establish or modify their working space.
The definitions of worker, employee, workplace, and place of employment in most provincial worker’s compensation legislation is broad enough to cover employees working from home. As a result, employees who are injured while working from home could be entitled to workers’ compensation benefits if the injury arose out of or in the course of their employment. Of course, this factual determination could be difficult to make in the circumstances. Nonetheless, employers would be wise to review their worker’s compensation insurance obligations. In many jurisdictions, requirements to attain workers’ compensation insurance are wholly unaffected by whether employees work from home. For example, excluding those in the fishing industry, employers with three or more employees working in New Brunswick must register for workers’ compensation coverage with WorkSafeNB regardless of where these employees work. In Nova Scotia too, workers’ compensation insurance is mandatory for certain industries and occupations that are not necessarily limited to any given physical workplace.
Employers should also review their business liability insurance policies to evaluate the risk of liability for other accidents that might occur while an employee works from home.
Occupational Health and Safety
For the most part, occupational health and safety (“OH&S”) statutes and regulations have not caught up to the fact that an increasing number of employees work remotely—whether from home, in a café, or elsewhere. However, except where these alternate places of work are explicitly excluded, these laws likely apply. In New Brunswick, the Occupational Health and Safety Act excludes application to “a place of employment that is a private home unless the work that is carried on has been contracted to the employer of one or more persons employed at the private home”. In most other jurisdictions, though, no such exception exists and the definition of workplace or place of employment is broad enough to capture employees working from home.
As a result of the application of OH&S statutes and regulations to employees working from home, employers have the same general duty to take every reasonable precaution to ensure a healthy and safe workplace as they would with an employee working in-office or on-site. The content of this duty may change with the context, but the overarching responsibility to ensure workplace health and safety and perform due diligence will be the same. For example, obligations to provide access to certain OH&S policies and materials in the workplace might require employers to provide digital access to these documents for employees working at home.
Employers may also owe specific duties to employees because of the application of these statues and regulations in the work-from-home context. In certain jurisdictions, regulations relating to checking in on employees working alone, on providing first aid training and/or kits for those working alone, or even on maintaining smoke-free workplaces could apply.
Workplace safety, though, is a two-way street. Employees also have duties and obligations under these OH&S statutes and regulations. Employees must maintain safe workplaces and report hazards. As a result, employees have a duty to maintain their working space at home in a safe condition. Practically, employers would be wise to have employees conduct and submit a risk assessment of their home workspace. Employers should then be prepared to work with employees to eliminate risks or hazards.
Employers should carefully review their workplace safety plans and policies and consider revising these documents to reflect the “new normal” or drafting a new policy specific to working from home.
Conclusion: Working from Home Policies
Employers have a number of obligations to employees working from home, some of which might otherwise be unexpected. Employers should engage legal counsel to determine the extent and content of these obligations. Further, employers should develop working from home policies, whether as part of a health and safety plan, or as required by local legislation, or simply as a best practice to limit liability for injury and to establish expectations with regard to safety, but also productivity and protection of confidential information and work product.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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