Working from Home: Beyond the COVID-19 Pandemic

Working from Home: Beyond the COVID-19 Pandemic

In March 2020,
the world shifted and many employees had to adapt to working from home. Now
several months on, many employees are hoping to make this arrangement
permanent. Having your employees work from home may benefit and be feasible for
some employers.

However, if an
employer plans on allowing working from home in the short or long-term a Work from
Home (“WFH”) policy is critical to outline expectations, meet occupational
health and safety requirements, and ensure continued productivity in an
increasingly more adaptive world.

Below are some questions to ask when developing a WFH policy:

1 – Can an employer require staff to meet certain requirements to work from home, such as minimum internet requirements, firewall protections, etc?

A
question we commonly receive is whether an employer can require staff to meet
specific workspace requirements in order to effectively work from home, such as
a desk/dedicated workspace, minimum internet requirements, firewall or security
protection, and more.

Employers
should be sure to indicate any specific requirements for employees to be
permitted to work from home in the WFH policy, and can indicate that the
employee is responsible for ensuring that they have all the necessary
technology/equipment required to work outside the office, including sufficient
internet access, and that the employee will bear the expense of the same.

However,
employers should be cautious not to pass business expenses on to employees, and
if an employer requires that employees work from home, the employer will likely
need to cover the cost of maintaining those minimum standards. If an employee
is not able to meet the minimum requirements to work from home, that individual
may be required to continue to work in the employer’s office in order to ensure
they are able to complete their duties.

Another important consideration is ensuring that any accommodations provided to employees to meet their specific needs, such as visual aids, dictation software, or any other accommodations are maintained even when the employee is working from home.

2 – How do employers provide a safe workplace for its employees as they work from home?

Even
if employees are working from home employers still have an obligation under
occupational health and safety legislation to do what they reasonably can to
protect the health, safety, and welfare of workers at a worksite, which
includes the home.

As
part of this obligation, an employer can provide an ergonomic assessment, for
example, or tips to ensure the employee is working in a safe environment. A
safe worksite can be achieved by providing tips for working from a kitchen
table or other area.

Even where there are no legal obligations to do so, it’s a good idea to make sure that your employee’s home office is set up in an ergonomically effective way to ensure that your employee is as comfortable and productive as they can be.

3 – How do employers track employee productivity to ensure they are performing their work duties, and taking breaks?

Employers
and employees can agree to create flexible work hours, but the general rule is
that the expectations for work hours, availability, and terms of work that
apply at the office also apply when WFH. Employers should be sure to consider
human rights accommodations, such as for child care obligations, when
considering flexible work hours.

As
part of the WFH policy, employers can outline ways to manage and track employee
productivity to ensure that employees are still maintaining their required
working hours. Employees are not typically required to expressly agree to WFH policies
as they most often fall within management’s right to manage the workplace. If
an employee fails to comply with a WFH policy, employers may take disciplinary
action as they are entitled to enforce WFH policies.

Hour
or productivity tracking is similarly important to ensure that employees are
not overworking, either by forgetting to take required breaks or by engaging in
unnecessary overtime work. Many individuals who work from home tend to
experience an increase of productivity, and this may result in overworking or
working beyond the scope of scheduled work hours.

Employers and employees alike should be careful to ensure that employees are still taking their regular breaks as required by the Employment Standards Code, that they do not engage in overtime work without employer consent, and that clear expectations are set around work availability so that employees do not experience constant work demands.

4 – How can we mitigate privacy or confidentiality breaches while employees work from home?

Allowing
employees to work from home may involve a reduction of control over
confidential information and data protection. Employees have access to
sensitive information, and employers should specifically consider how to
address confidentiality concerns to protect property and confidential
information.

WFH
policies can include specific requirements to support confidentiality,
including:

  • Prohibiting employees from joining open or public Wi-Fi networks while performing work duties,
  • Document management expectations to ensure physical documents are kept secure and that documents which require secure shredding are stored and disposed of properly,
  • Directions for business-related phone calls or teleconferencing to ensure they are kept confidential, and
  • Education regarding phishing attacks, how to report possible incidents, and security updates to software.

5 – Working from Home, or Working from the Beach?

This issue is most likely to become relevant as working from home arrangements continue past the COVID-19 pandemic, although they may already be relevant if employees have requested to return to another province or country while performing their work duties.

If
an employee has requested to work from another jurisdiction, an employer does
not have an obligation to accommodate this. There may be other means that serve
as appropriate accommodation. Working from home in another jurisdiction may go
to the level of “undue hardship” as there may be a question as to
what jurisdiction the employee is performing “work” in.

If
an employee has been permitted to work outside of the jurisdiction, there is
risk that any termination of this condition would give rise to a constructive
dismissal claim. It would need to be determined how the arrangement came into
place and what is understood by the parties. If the employer and the employee
agree in advance that the employer can end the arrangement at any time, the
risk is reduced.

However,
if no such reservation is made and WFH has been deemed to be a key term of
employment, which could be the case if the employee requested it and the
employer agreed in order to retain the employee’s services, then the risk of
constructive dismissal is increased where the employer unilaterally terminates
the WFH arrangement.

We
would recommend having a WFH policy even in instances where working from home
is limited to the effects of the COVID-19 pandemic or for more flexible work
arrangements. WFH policies create a framework by which the employee can better
understand the employer’s expectations, and through which the employer can
enforce those standards.

As with any new policy or change to the workplace, considerations will be specific to your business’ needs and may require further assessment. The Field Law Labour + Employment group can help you create a policy that meets the needs of your business and your employees. Click below to download our Policy Content Checklist.

Caitlyn Field

Caitlyn Field

Caitlyn Field is an Edmonton-based lawyer practicing in the areas of: professional regulation, labour and employment, human rights, and business immigration. Caitlyn primarily serves professional regulatory bodies with issues relating to governance, policy development, registration, protection of title, and discipline.

Leave a Reply

Your email address will not be published. Required fields are marked *