August 12, 2020
This publication has been updated as of May 5, 2021.
The ongoing COVID-19 pandemic has led many employees to continue working from home, by choice or by circumstance, temporarily, permanently, or part-time, signalling the possible disappearance of the traditional workplace in favour of flexible arrangements, shared or rotational dedicated workspaces, and remote work. But employers must still comply with employment-related legislation and still owe employees working from home a number of legal obligations – some of which, such as ensuring their health and safety in the home workplace, employers might not expect. A written “work from home policy”, as part of an OH&S health and safety plan, as required by local legislation, or as a best practice, is a key tool to help employers meet these legal obligations, as well as limit liability for injury, establish expectations around safety, productivity, and protection of confidential information and work product, and address the tax implications of working from home.
Statistics Canada has found that some 40% of Canadians work jobs that can plausibly be carried on from home. The COVID-19 pandemic triggered a significant shift from working in-office or on-site to working form home for many of these employees:
The shift does, however, require employers to be aware of, and ensure they continue to fulfill, their legal obligations to their employees who are working from home. Here are four key laws that continue to apply to employees working from home – and continue to impose obligations on their employers.
1. Employment Standards Laws
Chief among the employer’s obligations to employees working remotely (including working from home) are those under applicable employment or labour standards legislation. Employees who work from home are entitled to many, if not all, of the same statutory rights and benefits as those who work from their employer’s premises. 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. For example, under Ontario’s Employment Standards Act, “homeworkers” are a defined class of employees who have a separate, higher minimum wage than other classes of employees, including those working in their employer’s premises. In other provinces, such as Nova Scotia, there’s no distinction between home-based employees and those working on-site. Employers with employees working from home might also need to consider changing how they fulfill other employment standards law requirements, such as keeping accurate records of the hours at-home employees work.
2. Human Rights Laws
Similarly, human rights legislation continues to apply to employees working from home or remotely. Employers are still prohibited from discriminating against those employees based on a personal characteristic protected by human rights legislation – and they still have a duty to accommodate those employees to the point of undue hardship. In the work from home context, this duty might require an employer to be more flexible with expected working hours for employees with ongoing childcare or family 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 that as of July 9, 2020 74% of parents surveyed reported being very or extremely concerned about balancing work, childcare, and school. Accommodation needs could also arise for employees with physical disabilities required to perform their duties from their homes, and who might require additional support to establish or modify their working space. And the mental health toll of the continuing pandemic could lead to an increase in employees working from home seeking accommodation of a mental disability.
3. Workers’ Compensation Laws
The definitions of worker, employee, workplace, and place of employment in most provincial workers’ 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, that the employee is working from home or remotely can make this factual determination difficult. Employers are wise to review their workers’ compensation insurance obligations.
Mandatory Registration. In many jurisdictions, the requirement for an employer to register for and pay workers’ compensation assessments are 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 their employees work. Similarly, in Nova Scotia, workers’ compensation insurance is mandatory for certain industries and occupations that aren’t necessarily limited to any given physical workplace.
Liability Insurance. Employers are also wise to review their business liability insurance policies to evaluate coverage for the risk of liability for other accidents that might occur, to an employee or to others, while an employee works from home.
4. Occupational Health & Safety Laws
For the most part, occupational health and safety (OH&S) legislation hasn’t caught up to the fact that an increasing number of employees work remotely – whether from home, in a café, or elsewhere. However, unless they explicitly exclude alternate places of work, OH&S laws likely apply to employees working from home. For example, the New Brunswick 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. Employers should carefully review their workplace safety plans and policies and consider revising them to reflect the “new normal”, or drafting a new policy specific to working from home. And as the shift to working from home doesn’t appear likely to end soon, and some employers adopt permanent full-time or rotational work-from-home models anticipated to continue post-pandemic, it’s important employers review their legal obligations under OH&S legislation to these employees. If these models of work persist, it’s likely employer compliance will be tested as a result of at-home injuries or investigation by OH&S authorities. Employers would do well to get ahead of any occupational health and safety issues in this next normal.
General Employer Duties. As a result of the application of OH&S laws to employees working from home, employers have the same general duty to take every reasonable precaution to ensure these employee have a healthy and safe workplace as they would with an employee working in-office or on-site. The content of this duty might change with the context, but the overarching responsibility to ensure workplace health and safety and perform due diligence is the same. This requires employers to adapt the way in which they fulfill these obligations. For example, the typical OH&S statutory obligation to provide employees with 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.
Specific Employer Duties. Employers might also owe specific duties to employees because of the application of occupational health and safety laws in the work-from-home context. For example, 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.
Employee Duties. Workplace safety, though, is a two-way street. Employees also have duties and obligations under these OH&S laws, and these also continue to apply to employees working from home. 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 are wise to require employees to conduct and submit a risk assessment of their home workspace, and be prepared to work with them to eliminate risks or hazards.
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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