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Working from Home: Beyond the COVID-19 Pandemic

In March 2020, the world shifted and many employees had to adapt to working from home. Now several months on, many employees are hoping to make this arrangement permanent. Having your employees work from home may benefit and be feasible for some employers.

However, if an employer plans on allowing working from home in the short or long-term a Work from Home (“WFH”) policy is critical to outline expectations, meet occupational health and safety requirements, and ensure continued productivity in an increasingly more adaptive world.

Below are some questions to ask when developing a WFH policy:

1 - Can an employer require staff to meet certain requirements to work from home, such as minimum internet requirements, firewall protections, etc?

A question we commonly receive is whether an employer can require staff to meet specific workspace requirements in order to effectively work from home, such as a desk/dedicated workspace, minimum internet requirements, firewall or security protection, and more.

Employers should be sure to indicate any specific requirements for employees to be permitted to work from home in the WFH policy, and can indicate that the employee is responsible for ensuring that they have all the necessary technology/equipment required to work outside the office, including sufficient internet access, and that the employee will bear the expense of the same.

However, employers should be cautious not to pass business expenses on to employees, and if an employer requires that employees work from home, the employer will likely need to cover the cost of maintaining those minimum standards. If an employee is not able to meet the minimum requirements to work from home, that individual may be required to continue to work in the employer’s office in order to ensure they are able to complete their duties.

Another important consideration is ensuring that any accommodations provided to employees to meet their specific needs, such as visual aids, dictation software, or any other accommodations are maintained even when the employee is working from home.

2 - How do employers provide a safe workplace for its employees as they work from home?

Even if employees are working from home employers still have an obligation under occupational health and safety legislation to do what they reasonably can to protect the health, safety, and welfare of workers at a worksite, which includes the home.

As part of this obligation, an employer can provide an ergonomic assessment, for example, or tips to ensure the employee is working in a safe environment. A safe worksite can be achieved by providing tips for working from a kitchen table or other area.

Even where there are no legal obligations to do so, it’s a good idea to make sure that your employee’s home office is set up in an ergonomically effective way to ensure that your employee is as comfortable and productive as they can be.

3 - How do employers track employee productivity to ensure they are performing their work duties, and taking breaks?

Employers and employees can agree to create flexible work hours, but the general rule is that the expectations for work hours, availability, and terms of work that apply at the office also apply when WFH. Employers should be sure to consider human rights accommodations, such as for child care obligations, when considering flexible work hours.

As part of the WFH policy, employers can outline ways to manage and track employee productivity to ensure that employees are still maintaining their required working hours. Employees are not typically required to expressly agree to WFH policies as they most often fall within management’s right to manage the workplace. If an employee fails to comply with a WFH policy, employers may take disciplinary action as they are entitled to enforce WFH policies.

Hour or productivity tracking is similarly important to ensure that employees are not overworking, either by forgetting to take required breaks or by engaging in unnecessary overtime work. Many individuals who work from home tend to experience an increase of productivity, and this may result in overworking or working beyond the scope of scheduled work hours.

Employers and employees alike should be careful to ensure that employees are still taking their regular breaks as required by the Employment Standards Code, that they do not engage in overtime work without employer consent, and that clear expectations are set around work availability so that employees do not experience constant work demands.

4 - How can we mitigate privacy or confidentiality breaches while employees work from home?

Allowing employees to work from home may involve a reduction of control over confidential information and data protection. Employees have access to sensitive information, and employers should specifically consider how to address confidentiality concerns to protect property and confidential information.

WFH policies can include specific requirements to support confidentiality, including:

  • Prohibiting employees from joining open or public Wi-Fi networks while performing work duties,
  • Document management expectations to ensure physical documents are kept secure and that documents which require secure shredding are stored and disposed of properly,
  • Directions for business-related phone calls or teleconferencing to ensure they are kept confidential, and
  • Education regarding phishing attacks, how to report possible incidents, and security updates to software.

5 - Working from Home, or Working from the Beach?

This issue is most likely to become relevant as working from home arrangements continue past the COVID-19 pandemic, although they may already be relevant if employees have requested to return to another province or country while performing their work duties.

If an employee has requested to work from another jurisdiction, an employer does not have an obligation to accommodate this. There may be other means that serve as appropriate accommodation. Working from home in another jurisdiction may go to the level of "undue hardship" as there may be a question as to what jurisdiction the employee is performing "work" in.

If an employee has been permitted to work outside of the jurisdiction, there is risk that any termination of this condition would give rise to a constructive dismissal claim. It would need to be determined how the arrangement came into place and what is understood by the parties. If the employer and the employee agree in advance that the employer can end the arrangement at any time, the risk is reduced.

However, if no such reservation is made and WFH has been deemed to be a key term of employment, which could be the case if the employee requested it and the employer agreed in order to retain the employee's services, then the risk of constructive dismissal is increased where the employer unilaterally terminates the WFH arrangement.

We would recommend having a WFH policy even in instances where working from home is limited to the effects of the COVID-19 pandemic or for more flexible work arrangements. WFH policies create a framework by which the employee can better understand the employer's expectations, and through which the employer can enforce those standards.

As with any new policy or change to the workplace, considerations will be specific to your business’ needs and may require further assessment. The Field Law Labour + Employment group can help you create a policy that meets the needs of your business and your employees. Click below to download our Policy Content Checklist.

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