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With the holiday season in full swing and the announcement of new lockdown measures in Ontario, many employees will be carrying out their employment duties from home over the holiday period.

As employment lawyers, we believe it is important to understand how working from home impacts employment rights and obligations for both employers and employees, particularly as we anticipate that the remote work arrangement will remain prevalent well into 2021.

Accordingly, we have focused on some items for consideration to provide clearer avenues for both employers and employees with respect to work from home arrangements, and to avoid any potential claims for human rights violations, constructive dismissal, wrongful dismissal or otherwise.

Keeping Employees Safe

Despite carrying out work from home, employers continue to have obligations to employees under applicable health and safety legislation, such as the Occupational Health and Safety Act (“OHSA”) in Ontario or the Canada Labour Code (“CLC”), as well as obligations and potential liabilities under the Ontario Workplace Safety and Insurance Act, 1997.

With the definition of “workplace” broadly defined, there is some uncertainty about the application of OHSA to work performed in a private home. However, considering the limited guidance in Ontario, employers are encouraged to exercise due diligence when it comes to home office set-up and equipment used by employees.

In particular, the OHSA requires that employers “take every precaution reasonable in the circumstances for the protection of a worker” and therefore employers should consider providing employees with policies aimed at mitigating safety risks while working from home.

Employees also have an ongoing duty under the OHSA to take reasonable steps to protect their health and safety, and as such, employees are encouraged to work together with their employer by not only complying with any health and safety policies imposed but also by informing their employer if they are not able to comply with a specific practice or procedure.

Furthermore, Ontario’s Workplace Safety and Insurance Act also applies to remote work arrangements and the Workplace Safety and Insurance Board (“WSIB”) continues to expect employers to make all reasonable efforts to report any injuries or illnesses within the expected timelines unless they are prevented from doing so because of the declared emergency.

Through the WSIB, employees can also submit claims for benefits relating to contracting COVID-19.  These claims will be assessed based on (1) the risk of contracting COVID-19 created by the employment, which the public is not exposed to and (2) the Board’s confirmation of the worker’s COVID-19 diagnosis. Employers should therefore consider strategies for minimizing the risk of workplace injuries and costs, including with respect to exposure to COVID-19, while employees work from home.

Accommodating Employees to Protect Health

Rights and obligations under Ontario’s Human Rights Code or the Canadian Human Rights Act continue to apply to situations involving employees working from home. Considering this, employers should consider the following:

  1. Providing specific tools needed to work from home including devices, office equipment etc. Specifically, requests related to equipment should be approached with a view towards accommodation obligations.
  2. Adjusting schedules and work to provide reasonable accommodation to employees facing issues relating to managing childcare and working from home.

Employees may specifically be entitled to accommodation from their employer to the point of undue hardship for their family status-related circumstances. This means that an employer has an obligation to accommodate an employee if it is not unduly expensive or will not pose challenges to overall health and safety. To establish that an accommodation is required, an employee must demonstrate that their legal obligation to provide care for their child is engaged and that other arrangements (such as alternate caregivers) are not feasible.

Failure to accommodate an employee may be characterized as a violation under applicable human rights legislation and may amount to a constructive dismissal.

Overtime Rules

Overtime rules under employment standards legislation continue to apply when an employee works from home. If an employee is overtime-eligible, then the employee is entitled to be paid for time worked, unless the employer has clarified that the employee should not be working.

In short, employees are to be compensated for work performance, and an employer will not be able to avoid their obligation to pay overtime unless it was clear that the employee was not to perform the task/work carried out. Employees would therefore be wise to monitor their hours to ensure that they are being provided with additional compensation, if appropriate. Further, just because an employee is on salary (as opposed to hourly pay), does not mean that the employee is not entitled to overtime pay. Rather, overtime pay is determined by a range of factors, including the specific responsibilities of the employee.

Failure by an employer to pay an employee for legitimately earned overtime pay may result in a complaint with the Ministry of Labour or a claim of constructive dismissal as the employer may be in breach of the employment contract.

Protecting Company Property

For practical reasons, it may be more difficult for an employer to maintain control over confidential information, document storage and data protection when employees are working from home.

To minimize the risk of data loss, employers should set clear expectations for the ongoing protection of company property and confidential information via established work from home policies.

Managing Performance Issues

Many employers may have concerns with respect to monitoring and addressing employee productivity during the holidays and when employees are working from home. To manage this, employers may consider requiring that employees log on to work for a set time throughout the day.

Further, employers should also take time to develop a thorough understanding of each employee’s role and associated duties so that they are in the best place to assess productivity and identify performance issues.

Employers should continue their regular processes for employee supervision, evaluation, and discipline, including documenting performance issues, conducting regular evaluations, and implementing performance improvement plans (PIPs) and progressive disciplinary measures where appropriate.

Despite the above, employees have the right to be treated in good faith. Any kind of harassment is inappropriate, and employees may be entitled to claims relating to constructive dismissal, wrongful dismissal, or otherwise.

If you have any questions with respect to working from home, whether you are an employer or employee, and the impact that working from home might have on employment rights, termination of employment, wrongful dismissal, or otherwise, please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or here.

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