What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be considered.
ONTARIO HEATH AND SAFETY LEGISLATION DOES NOT APPLY TO WORKING AT HOME:
The health and safety of employees is largely governed by Ontario’s Occupational Health and Safety Act (the “Act”).
However, for employees working at home, or remotely, as it stands, the Act does not apply to those circumstances.
Sub-section 3(1) the Act provides that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”
Employers cannot reasonably be expected to attend an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their employees in their own home environments, over which the employer has no control.
However, there may still be risks in an employee’s home, which ordinarily would be covered by the Act – both employees and employers should discuss potential safety issues for the working-at-home arrangements, even if employers are not statutorily required to do so.
Despite this, due to the pandemic, it is entirely unclear if this legal position will be applied in future.
WORKPLACE VIOLENCE AND HARASSMENT:
The Act addresses directly workplace violence and harassment, including requiring employers to mandatorily have an adequate workplace policy.
These protections should still apply to employees working at home, sensibly.
Employees may still be expected to interact with co-workers, customers and clients, for example, including virtually. While there may be less risk of physical contact while remote working takes place, there remains the risk of other forms of violence or harassment, which is prohibited in the workplace by the Act. There need not be a physical office interaction for violence or harassment to be experienced.
Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way.
Effectively, there is simply a lack of caselaw decisions on this point and no clear direction on whether the Act will apply to working at home, or not, particularly during this pandemic and the unprecedented circumstances it brings.
TIPS TO EMPLOYERS TO MINIMIZE THE RISK OF LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC:
Therefore, employers are well-advised to carefully consider these issues during the pandemic, or at any other time, particularly for work-at-home arrangements with remote employees:
[1] Health and Safety:
- the employer’s obligations under the Act in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; and
- the potential that the workplace could be considered to include an employee’s home must be considered, including the employee’s workstation set up and ergonomics.
[2] Mental Health, Psychological and Sexual and Other Violence and Harassment:
- employers must strive to promote and preserve civility and courteous conduct, especially while using new methods of communication, like virtual teleconferencing, etc.;
- employers should provide etiquette guidelines for virtual communication between co-workers and customers;
- employers must discourage misconduct or failure to engage in proper teamwork – new technology does not alter this important objective;
- employers have a legal responsibility to prevent and address psychological, sexual and other harassment situations;
- employers may be responsible for events that occur outside the usual workplace, but relate to work;
- employers should adopt a formal working-at-home policy, clearly setting out the expectations; and
- employers should review their complaint and inquiry procedures, to ensure they may be adequately processed outside of the workplace, too.
[3] Employment Standards Act, 2000:
Employers must also be mindful of their statutory obligations and minimum labour standards, which apply to those working at home, too, including:
- modifying work schedules;
- managing overtime; and
- addressing costs associated with working from home.
[4] Privacy and Confidentiality:
It is critical for employers to consider and manage effectively the privacy and confidentiality of work-related information, including:
- to accommodate properly the contractual performance of work in the employee's home;
- for transporting and storing work documents; and
- establishing work spaces at home to ensure that information/documents are kept confidential and ethical obligations are respected and adhered to strictly.
Caselaw References:
Decision No 2249/16, 2016 ONWSIAT 2410
Watkins v. The Health and Safety Association for Government Services, 2013 CanLII (ON LRB)
