Wickwire Holm Labour & Employment Law Newsletter: Spring 2020

Working from home: What are the considerations?

With the rapid onset of COVID-19 earlier this year, many employers had to quickly transition to a work from home model. As we return to a “new normal”, many employers are considering whether these arrangements make sense on a basis.

This newsletter considers the obligations that employers have to consider when analyzing whether a work from home arrangement is viable on a long-term basis.

Why work from home?

Responders to Buffer’s 2019 State of Remote Work report indicated that a flexible work schedule (40%) and the ability to work from any location (30%) were far and above the biggest benefits of working remotely.  Other benefits identified were time with family (14%) and working from home (13%) (https://buffer.com/state-of-remote-work-2019).

For employers, work from home arrangements have a number of advantages, including reducing costs and providing a more flexible workplace that accommodates a wider range of employee needs.

However, according to the same report, employees working from home struggle with a number of issues, including an inability to unplug from work (12%), loneliness (19%) and lack of collaboration and communication with colleagues (17%).

Initial considerations

When looking at a shift to a work from home arrangement, employers have to consider the details of any applicable employment contract or collective agreement to determine if such a change is possible. In most cases, this change will require that the employer communicate with the union.

It is also important that employers review their policies and assess if these policies need to be updated to address the realities of a remote workforce. Potential concerns include the secure storage of data, supervising productivity, managing hours of work and payment of any expenses incurred by employees.

Of course, the nature of the workplace will determine whether it is even possible for a work from home arrangement to be put into place.

Employer obligations

Most employers are familiar with their obligations under safe work legislation to provide a hazard-free work environment for their employees.  This legislation includes the Occupational Health and Safety (“OHS Act”) regime and the Workers’ Compensation Act (“WCB Act”).   It is important to remember that employers can continue to have obligations under these acts, even when an employee is working from home.

Occupational Heath and Safety obligations

The OHS Act defines the workplace as “any place where an employee or self-employed person is or is likely to be engaged in any occupation and includes any vehicle or mobile equipment used or likely to be used by an employee or self-employed person in an occupation.”

Based on this definition, most employees working from home fall under this legislation.  Employers and employees are both obligated to take “every precaution that is reasonable in the circumstances” to ensure that employees are safe at the or near their workplace.  Even when employees are working from home, employers have to provide the required safety equipment and materials to ensure that employees can go about their business safely.  This includes providing the necessary training and supervision, where required, to ensure that employees are working safely.

Employees have the obligation to ensure that they are taking reasonable precautions to protect their own health and safety as well as those of other employees.  Employers have to have clear policies that apply to employees’ home work spaces.

While there is currently some uncertainty with respect to the scope of coverage of the OHS Act in the home office environment, given the expansive language used in the OHS Act, employers should take proactive steps to limit potential risks and liabilities for their employees at their homes.

WCB Legislation

The definition of worker under the WCB Act is very broad, including “a person who has entered into or works under contract of service or apprenticeship written or oral expressed or implied”.  A particular concern with employees working from home is section 10(4), which states that “…where the accident arose out of employment, unless the contrary is shown, it shall be presumed that it occurred in the course of employment”.

An important limitation is whether the employer is covered by WCB – both in terms of the activity of the employer as well as the size of the employer’s workforce. For some industries, WCB coverage is mandatory, while for others, this coverage is voluntary.

The Workers’ Compensation Board of Nova Scotia has a policy manual which addresses what is considered when determining whether an accident arose “in the course of employment”.  Generally speaking, an accident arises out of employment when there is a causal connection between the employment and the injury that the employee suffered and the injury is the result of a risk related to their employment.  This injury can be directly or incidentally related to the employee’s job. The policy also covers both a single major accident or an injury that developed over time.

In a 2012 decision, the Nova Scotia Workers’ Compensation Appeals Tribunal addressed whether an employee’s injury arose out of the course of her employment (WCAT # 2011-167-AD). The injured employee worked a regular shift from home providing technical support. Occasionally she was required to work standby, which meant that she had to be available for service calls around the clock. The employee’s work station was located upstairs while her bedroom was in the basement.  One evening, after completing a service call, the employee tried to go to the washroom (which was upstairs). Unfortunately, she mistakenly opened the door to the basement and fell down the stairs.

The employee claimed workers’ compensation benefits. In deciding that the injury was the result of a risk created by her employment, the Tribunal rejected the argument that the employee’s home should be considered her workplace for the entire duration of her on-call shift. However, the Tribunal did find that the only reason that the employee was upstairs at the time of her injury was because she had to respond to a work-related call. Accordingly, the risk that she could sustain an injury while returning to bed was a risk that was created by her employment.

The Tribunal did note that if the employee had done something that was personal in nature completely unrelated to her work such as watching television before returning to bed, they may have decided differently.

It is important to note that just because an injury happens at work does not mean that an employee is covered under the WCB Act. Based on the WCB Act and case law, employers should be aware that when they require an employee to work from home, if this employee encounters a risk as part of their job responsibilities, a resulting injury may be found to have arisen out of the course of their employment. Given the flexibility of a work from home arrangement, determining whether an injury is related to work can be a significant challenge.

Practical considerations

If an employer determines that a work from home arrangement is best for all or part of their workforce going forward, it is recommended that employers have their employees sign a work from home Agreement. Employers should consider the following issues and determine how these issues will be addressed in their agreement:

  • What policies and procedures are in place to ensure that employees are working in a safe environment at home?
  • What does the applicable Collective Agreement/Employment Agreement state regarding work from home or work locations?
  • How is productivity going to be measured? How is quality control going be managed? What are the basic expectations such as hours of work and availability?
  • How long is this arrangement going to be in place – is it a temporary measure or a permanent shift?
  • Is surveillance software on the employee’s computer required?
  • Who will pay for the cost of the set up and for costs incurred?  This can include one-time purchase of items such as chairs and desks, but can also cover ongoing costs such as high-speed internet.
  • What controls need to be put in place to ensure your information and the information of your clients is protected and secure?

Work from home arrangements can be a productive and beneficial means of structuring your workforce.  However, employers should be cautious when implementing these arrangements on a long-term basis. Simply because your employees are working out of their home does not remove your obligations to provide a safe workplace.

Structured and proactive measures should be imposed to ensure that employees have a safe work environment and that there is minimal exposure to employers.