Employees Who Continue to Work from Home – Practical Considerations for Employers
Date: May 20, 2020
As provinces begin to roll out reopening plans for non-essential businesses, the logistical challenges of implementing social distancing in some workplaces mean that many employees will continue to work from home for the foreseeable future. As companies consider which employees will be asked to return to the workplace, and when, the legal considerations and risks associated with work from home arrangements should be taken into account.
For employees who work from home, employers continue to have accommodation obligations under Ontario’s Human Rights Code or the Canadian Human Rights Act, potential obligations under applicable health and safety legislation (Ontario Occupational Health and Safety Act (OHSA) or the Canada Labour Code (CLC)), and obligations and potential liabilities under the Ontario Workplace Safety and Insurance Act, 1997 .
While “workplace” is defined very broadly under the OHSA, there is some uncertainty about the application of the statute to work performed in a private home by the owner or occupier of that home on account of a statutory exemption for such work. In light of the limited guidance as to the scope of this exemption, and whether it was even intended to capture these types of work from home arrangements, Ontario employers should exercise due diligence when it comes to home office set-up and equipment used by employees.
For federally regulated employers, while some obligations in Part II of the CLC will continue to apply to work from home arrangements, the Supreme Court of Canada has found that some statutory obligations may not apply to workplaces over which the employer has no control (discussed in our FTR Now of January 10, 2020 Supreme Court of Canada: Work Place Safety Inspections Under Canada Labour Code Only Apply to Work Place Over Which Employer Has Control). Nevertheless, federally regulated employers should turn their minds to those health and safety obligations under the CLC that are likely to continue to apply to home offices ,and consider how best to meet them.
The duty to provide reasonable accommodation under applicable human rights legislation continues to apply to employees working from home. This duty may be triggered when employees request office furniture, specific devices, or other tools to use while completing their duties from home. While employers may not have a general obligation to furnish home offices, requests related to equipment should be approached with a view to accommodation responsibilities. Even in the absence of a previously established accommodation need, disabilities may arise that require the employer to engage in the accommodation process.
For those employers registered with the Workplace Safety and Insurance Board (WSIB), coverage extends to employees as long as they are in the course of employment. The WSIB will typically look at factors of time (did it happen during regular work hours?), place (did it happen in the usual place of work?) and activity (was the activity the employee performing reasonably incidental to their employment?).
The WSIB continues to expect employers to make all reasonable efforts to report any injuries or illnesses within the expected timelines, unless they are prevented from doing so because of the declared emergency. Employers should turn their minds to this continuing obligation as well as potential strategies for minimizing risk of workplace injuries and costs while employees continue to work from home.
If you are considering extending work from home arrangements for some or all of your workforce, a well-drafted work from home policy, combined with a work from home agreement, can help minimize liabilities and ensure the continuing health and safety of employees. Please reach out to your regular Hicks Morley lawyer if you wish to discuss any of these issues further.
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