This general legal information (not legal advice) is subject to change, and there may be exceptions based on your specific circumstances. You should obtain independent legal advice before taking any action which may impact your legal rights. If you are an employer and need legal advice regarding the drafting, development, and implementation of a Working from Home (“WFH”) Policy, an OA lawyer will be pleased to assist you with your situation.

As the COVID-19 situation continues to develop, some employers are allowing their employees to move to remote workspaces. When drafting a WFH policy, employers should take into consideration the variables that may affect the business’s day-to-day operation and their obligations to their employees.

A WFH policy should provide guidelines and expectations of the workplace to help with operational needs. These guidelines should consider health, safety, accountability, productivity, security, and accommodation of employees before the WFH policy is implemented. An employer should also consider reviewing the duties and responsibilities of their employees before deciding whether a WFH solution is feasible.

Health and Safety

Remote workplaces and employees are still subject to the Ontario Occupational Health and Safety Act (“OHSA”) which governs health and safety in the workplace. An employee should choose a workspace that is free from distraction and has minimal risk of injury.

After the workspace has been chosen, an employee should:

• conduct a workplace safety risk assessment to identify any potential hazards (e.g. fire, slip and fall, etc.);
• discuss training for health and safety with the employer to reduce risk, and
• review protocols on how to report injuries, emergencies, or damage to equipment.

Note: If an employer is registered with the Workplace Safety and Insurance Board (“WSIB”) and an injury is reported to have occurred in a remote workplace, the claim will have to be investigated by the WSIB to determine whether the injury is work-related.

Accountability and Productivity

When implementing a WFH policy, the Employment Standards Act (“ESA”) will still apply to both employers and employees regarding the number of hours worked, including overtime. It can be difficult for an employer to monitor and enforce normal workplace standards in a remote workplace. For example, an employee who has unintentionally exceeded normal working hours and was not granted approval by the employer may make a claim for compensation. This can be potentially avoided by issuing a clearly written and well-understood WFH policy.

The policy should outline several directives including:

• the expectation for working hours during the working week;
• the employee’s reasonable performance goals;
• when meetings will be scheduled to discuss workplace productivity;
• who the employee should report to during the workday;
• how employees can document and submit their work;
• instructions on how to use workplace software (if applicable); and
• how to request overtime (written or verbally).

Note: It may be useful for an employer to create policies that consider reassessment after a certain time frame (e.g. 3 months) to evaluate the viability of working remotely.

Security

When working in remote spaces, it may be necessary for employees to have access to confidential or sensitive materials outside of the workplace. It is imperative that an employer re-emphasizes the importance of understanding and maintaining the integrity of confidential information. Employers should update their privacy policy and provide employees with a written copy of the policy to review. This will ensure that employees understand the ramifications for failing to adhere to the policy.

An employer might require that the following security measures are adopted:

• a secure Wi-Fi Connection is available in the workplace;
• printed documents are always secured (e.g. locked away when not in use);
• employees do not download confidential documents;
• anti-virus software is installed on all computers;
• other members of the household cannot access confidential information;
• the employee locks the computer when away from the workstation; and
• employee access to company materials (e.g. company software) is monitored.

Note: The employer should discuss with the employee how to secure a strong Wi-Fi connection with a Virtual Private Network (VPN) and dual authentication password. These security measures will help ensure the employee’s work is safeguarded.

Accommodation

Even where an employee is working remotely, an employer still has an obligation to accommodate an employee to the point of undue hardship when required to do so under the Ontario Human Rights Code (“the Code”). When an employee requests accommodation, the employer should treat it as any other request they might receive during normal operations. This procedure allows employers to ask for relevant information pertaining to the accommodation, investigating, and deciding if the request is reasonable.

Employers should ensure that employees have access to the necessary technology required to complete their duties. In some cases, an employee may be required to purchase equipment such as a phone, laptop, or new software. An employer should be prepared to reimburse an employee if equipment needs to be purchased.

Moving business operations to a remote workplace is a huge decision for companies. A well-written WFH policy can limit liability and ensure productivity in a remote working environment. If you want to know more about your options or rights pertaining to WFH policies, seek out legal advice for more information.

O’Neill Associates is proud to support students from the Bora Laskin Faculty of Law (Lakehead University, Thunder Bay) through the school’s unique Integrated Practice Curriculum (IPC) Program. The IPC, a Bora Laskin variation of the “articling” program students complete at most other law schools, matches students with law firms to work side-by-side with experienced lawyers for one full semester during the third and final year. This article was written by Declan Gunovski who will be completing his Placement with OA in the upcoming academic year.