Working from home – will it be more permanent or, at least, regular, even after the pandemic?
Stay-at-home work may be part of the “new normal” in the City of Kawartha Lakes for many businesses and organizations.
If so, there are a few legal issues to consider and plan for, not only to minimize liability for employers, but to enrich the work-at-home arrangement for both employers and employees.
Transitioning to remote work conditions involves some changes, legally.
HEALTH AND SAFETY ISSUES:
Although there may be some debate amongst legal professionals, arguably Ontario’s Occupational Health and Safety Act (the “Act”) extends to remove working arrangements. If not, expect the provincial government to soon verify that is the case.
Employers have a statutory duty to take all reasonable steps to ensure safety in the workplace, including for those working at home. Similarly, applicable federal legislation imposes the same obligation. To minimize exposure to liability, employers should assume this duty extends to those employees who are asked to, or who are permitted to, work at home in future.
Ontario has recently promulgated health and safety guidelines for operating a business during the pandemic, which apply to work-at-home arrangements, as may be relevant. Those should be reviewed and considered by both employers and employees.
To incorporate work-from-home arrangements in future, including following the pandemic, employers should review and revise their workplace policy to ensure they:
- require employees conduct their own assessment of the workplace and, after doing so, promptly report any potential risks/hazards;
- explore and address ergonomic issues relating to employees’ workplaces, including seating, keyboarding and monitor viewing;
- establish the procedure for notifying and contacting the employer and evacuating the home or other remote work area to a safe location in the event of an emergency;
- address the procedure for reporting promptly any work-related incidents or injuries;
- facilitate a fairly regular, scheduled “check-in” process with the employer and, if appropriate, co-workers;
- provide for a risk management/emergency procedure if an employee cannot be contacted, or communication is otherwise disabled; and
- provide for suitable and appropriate training for both supervisors and those working from home.
ONTARIO HUMAN RIGHTS CODE ISSUES:
COVID-19 bring more attention to the potential need to accommodate employees, particularly regarding family status and disability-related issues. The most common issues are:
- employees with young children being forced to balance full-time work with child care and educational responsibilities, while schools are closed and without the usual services provided by child care centres, schools, home maintenance, etc.;
- a need for additional time off due to illness, or a need to care for family members who are ill; and
- a need to work remotely due to concern of exposure or for other family (household) members who may have existing medical conditions or are elderly, which may make them more vulnerable to COVID-19.
In Ontario, employers must be mindful of the COVID-19 legal implications, including:
- Ontario now has a job-protected, unpaid infectious leave of absence, including for COVID-19;
- Ontario’s Human Rights Code requires employers to adopt individualized approaches to employees’ requests for accommodation – there is no one-size-fits-all, cookie-cutter, standard approach to accommodation requests and each request must be determined on the basis of the relevant circumstances affecting the individual employee and the employer; and
- employers’ obligations may vary or differ depending on whether the accommodations requested are short-term, medium-term, or permanent – permanent accommodation requests should not be rebuked merely because they are permanent in nature; rather, employers may be obliged to provide permanent accommodation if doing so falls short of “undue hardship.”
REMEMBER BULLYING, INTIMIDATION AND HARASSMENT:
Harassment, bullying and discrimination occur with virtual interactions, too.
Employers are required to take reasonable steps to prevent and address such conduct under Ontario’s human rights and occupational health and safety legislation.
Accordingly, employers must review and ensure their workplace violence, bullying and harassment policies address “virtual” conduct and include a process for complaints and investigations that can take place outside of the regular workplace environment.
WORKPLACE POLICY:
For those employers intending to continue work-at-home arrangements, including after the pandemic, they should establish a workplace policy delineating the protocol, practice and procedures for:
- the existing arrangements (during the pandemic);
- when schools and child care centres reopen ultimately;
- when social/physical distancing measures are relaxed, or removed; and
- the post-pandemic period, when restrictions no longer exist and the “new normal” applies.
Set expectations for employees sooner, rather than later, despite that it may be difficult to do so amidst the uncertainty of the pandemic. Things will change; developments will materialize that were not reasonably predicted. Workplace policies may need to be modified, or changed, to accommodate unforeseen developments during and after the pandemic.
Employers should develop and implement a flexible, scalable remove working policy, which addresses:
- the meaning of “remote work”;
- the employer’s organizational polices, rules and practices that apply to remote work employees;
- eligibility, approval and duration of a remote work arrangement;
- specific remote work arrangements that may need to incorporate a distinct written remote work agreement between the employee and the employer;
- specific responsibilities of the manager/supervisor for the work-at-home arrangement;
- remote work training that may be necessary, if any;
- feedback, performance reviews and evaluations;
- technology and communications, including setting up employees with the necessary computer and peripheral equipment at home and the costs related thereto;
- work hours and schedule;
- overtime issues and procedure;
- emergency measures;
- performance, work quality and professional standards and expectations;
- information and personal information security and measures to prevent unauthorized disclosure and privacy breach protocols; and
- restrictions and limits on engaging in personal affairs/business during the work day.
