In the wake of the COVID-19 pandemic, many employers have found themselves navigating the challenges involved in managing a remote workforce.  Prior to COVID-19, many employers did not regularly experience situations where the majority or entirety of their workforce worked remotely. 

COVID-19 has now resulted in employers across Canada dealing with these issues and arrangements for the first time.  In this article we identify key issues considerations and best practices which employers should be aware of as they transition to remote working arrangements, and offer guidance to addressing those issues, and mitigating risk, through the implementation of a comprehensive working from home/telecommuting policy.

Employment Standards Issues to Consider

With employees working remotely – and often for the first time – it is easy for all parties involved to start improperly blurring the line between ‘work time’ and ‘personal time’, often unintentionally.  What is important to keep in mind is that applicable employment standards legislation will continue to apply to remote employees.  This includes record-keeping requirements, as well as ensuring that workers are paid – and paid appropriately – for all time worked. 

A recent successful class action (see our previous article here) has underscored the importance of ensuring that non-exempt workers are paid for overtime where their actual work time exceeds the applicable overtime thresholds.  To mitigate the risk of breaching employment standards, and to foster a productive remote workplace, employers should clarify and set out guidelines regarding hours of work and attendance for remote workers:

• Are employees required to record hours of work each day?  If so, how?  If not, what steps are being taken to ensure record-keeping requirements are met?
• Will the Company implement other productivity tracking measures (eg. progress reports, monitoring of emails or Slack channels)?  What steps have been taken to ensure that employees and managers alike understand these productivity tracking measures and how they are being used?
• What are the employer’s expectations for employee availability?  Are employees expected to work and be available for telephone calls/meetings during normal business hours, with normal provisions for breaks and meals?
• How do employees call in sick?

For those employees who are eligible for overtime, employers should also establish guidelines regarding how overtime will be approved, tracked, and paid for remote workers.

Home Office and Equipment

A key question employers must address where employees choose to or are required to work from home, is who is responsible for buying and maintaining the remote employee’s equipment:

• What are the expectations on the employee to provide a ‘suitable’ work space within their personal residence?
• Will the employer or employee be responsible for the purchase and maintenance of equipment needed to facilitate a proper remote working arrangement (eg. internet, desk, chair, external monitor, Zoom or Teams accounts, etc.)?
• Will the employer require approval for the purchase of office equipment?
• Are there limits on the expenses that can be reimbursed?
• What background or supporting documents are required?
• If employees are being required to provide their own personal equipment (eg. computers, phones and tablets) to facilitate work, what additional safeguards may be needed to ensure the protection of confidential company information?

Employers may choose to assume some or all of these costs for employees being directed to work at home, while employees who request to work from home may be responsible for these costs.

For employers who have implemented remote working policies due to COVID-19, arrangements may need to be put in place for which equipment employees can bring home from their offices, when or how they can access the workplace to retrieve such equipment, or delivery arrangements.

Further, employers may want to establish rules for an employee’s remote workspace. For instance, limiting employees to working out of their primary residence (as opposed to a coffee shop, library, or vacation property), establishing limits on background noise or other interference, or requiring that childcare arrangements be put in place to establish a distraction-free environment.

Health and Safety

An employer’s health and safety obligations to its telecommuting workforce varies across the country. Whereas the definition of “workplace” is broadly defined, and employers have a general duty to take every precaution reasonable in the circumstance for the protection of workers, guidance on working remotely is limited and often unclear. In some Canadian jurisdictions, work performed in “private residences” is explicitly noted as not covered by health and safety legislation.

Nevertheless, even where clear legal direction respecting a remote workplace does not exist, employers should consider providing staff with some guidance. A good idea is to turn to existing health and safety policies and procedures already in place, and determine if and how they can be modified and made applicable for remote working. Then, to communicate those temporary changes to the telecommuters. Paramount to mitigating risks to the employer, and maintaining worker safety, is to be in a position (as employer) to demonstrate that all reasonable precautions were considered and implemented for the telecommuter.

Workers’ Compensation Issues

Workers covered under some provincial workers’ compensation schemes may remain covered while working from home. Consequentially, entitlement to benefits may be granted to a worker who sustains a work-related injury while working from home. When considering eligibility to benefits, the applicable workers’ compensation authority may consider whether the injury arose out of and in the course of the worker’s employment. Generally, this will include injuries sustained while performing,

• A work-related duty or
• An activity reasonably incidental to (related to) the worker’s employment.  

It is important that employers remain cognizant of worker injuries and workers’ compensation reporting obligations so these obligations are met during the COVID-19 pandemic.

Technology, Privacy and Intellectual Property 

Privacy and confidentiality issues can often arise in the context of working from home arrangements.  Employers should remind remote employees that any company information technology (“IT”), privacy or intellectual property policies continue to apply while working from home.

Employees should also be directed to take reasonable steps to safeguard the security and confidentiality of company documents, including with respect to information technology requirements. Employers may want to consider implementing / updating rules or guidelines respecting:

• Whether employees are allowed to take home company documents or other property;
• How and when employees safeguard information, including data stored on IT equipment;
• Whether employees are permitted to print documents at home and whether they can save documents onto a personal computer or external storage device;
• Whether the employer’s IT equipment and resources (eg. email system, computer software and hardware) remain the property of the employer;
• The use of personal IT equipment such as cell phones laptops and any safeguards that must be put in place (eg. passwords, antivirus, firewalls);
• Whether the company assumes responsibility for damages or losses relating to personal devices or equipment; and
• Employees complying with licensing agreements owned or held by the company.

Employers should require employees to report any security breaches or inadvertent disclosure of confidential information and establish the appropriate reporting channel.

Employers would be well-advised to review their policies respecting the extent to which there is an expectation of privacy over information shared and stored on devices being used to conduct company business.

Have a Working From Home Policy

The issues identified in this article are only some of the various issues which may arise in the context of working from home arrangements. 

In the context of working from home arrangements, a clearly worded policy can avoid many of the common “traps and pitfalls” that can result from a remote workforce.  It ensures that both the employer and the employee are aware of their obligations to maintain a successful remote working relationship. 

A Working From Home or Telecommuting Policy should (amongst other things):

• define performance expectations;
• clearly define expected hours of work and availability;
• address the working of unauthorized overtime;
• account for provincial health and safety requirements;
• address confidentiality requirements/practices; and
• expectations on dress code for client/company video meetings.

A telecommuting policy should also contemplate how and when the arrangement can be cancelled or amended, including a provision that allows the company to change or cancel the arrangement, which should be considered as a “benefit” to employees rather than a fundamental term of their employment. This can mitigate the risk that changes to the policy triggering claims for constructive dismissal.

Although certainly not exhaustive, this article highlights some of the key issues which an employer should consider when implementing working from home arrangements.  By being proactive and implementing a working from home/telecommuting policy with clearly defined expectations, an employer can minimize issues and liability associated with working from home arrangements.

If you have any questions about this topic, require assistance in drafting a comprehensive telecommuting or working from home policy, or any other questions relating to workplace law or COVID-19, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.