Recently, Yahoo Inc. made the controversial decision to end
telecommuting and to insist that employees be physically present in
the workplace. The decision has sparked shock and outrage amongst
those who see telecommuting as a step forward in the advancement of
employee rights. Notwithstanding Yahoo's decision, the number
of people working from home continues to grow. With this growth
comes a corresponding set of legal ambiguities and potential
pitfalls, and it raises questions with respect to whether, and to
what extent, employees can work from home.
Benefits Associated with Telecommuting:
Some of the potential benefits associated with telecommuting
have been said to include: saving employers money in overhead;
reducing employee work-life conflict; increasing employee
engagement; increasing employee loyalty; reducing turnover;
attracting and retaining talent; accommodating employees who would
not otherwise be able to work; and reducing absenteeism (Global
Workplace Analytics, online: "www.teleworkresearchnetwork.com").
Pitfalls Associated with Telecommuting:
Some of the potential pitfalls associated with telecommuting
have been said to include: exposing employees to a number of
distractions at home; requiring a high level of employee
discipline; loss of face to face contact with supervisors; and loss
of social interaction and collegiality with co-workers.
Are Employee's Entitled to Work From
Generally speaking, an employee is not entitled to work from
home absent permission from the employer. British Columbia courts
have held that an employer has a right, within reason, to determine
how its business will be conducted. In so doing, an employer may
establish any procedures it thinks advisable so long as they are
not illegal, dishonest or dangerous to the health of employees.
Such procedures may include insisting that employees be physically
present at the workplace. Recently, the B.C. Supreme Court
concluded that a Burnaby based employer was justified in dismissing
an employee who insisted on working remotely, notwithstanding the
fact that the employer had temporarily permitted this arrangement.
The employee's refusal to return to the Burnaby office
constituted wilful disobedience, and insubordination amounting to
repudiation of a fundamental term of the employment relationship
(Staley v. Squirrel Systems of Canada Ltd., 2012 BCSC 739).
Although an employer can establish any procedures it thinks
advisable, an employee may become entitled to work from home under
certain circumstances. Such an entitlement might arise through an
express term in an employment agreement permitting employees to
work from home. Such an entitlement may also arise by implication,
for example, where there is no express term of employment
prohibiting or limiting telecommuting and where:
(a) the nature of the workplace and the position make
(b) a physical presence in the workplace is not a genuine
(c) an employer enables telecommuting through provision of
remote access to the workplace; and/or
(d) other employees in similar positions are permitted to work
An employee may also become entitled to work from home if an
employer condones such activity. This might occur in circumstances
where the employer is aware that an employee is working at home
without permission, and nevertheless permits the employment
relationship to continue.
An employer may also be required to permit an employee to work
from home in circumstances where it would constitute discrimination
to insist upon physical presence in the workplace. Such a situation
might arise in the case of employees suffering from disabilities
that preclude them from working outside of the home. Alternatively,
such a situation might arise where an employee needs to work from
home in order to meet family obligations (for a recent case on the
employer's obligation to accommodate family obligations, see
Canada (A.G.) v. Johnstone, 2013 FC 113). In such cases, employers
may be required to accommodate employees by permitting
telecommuting to the point of undue hardship.
Given the foregoing, employers should establish written
telecommuting policies that make sense for their specific workplace
and their employees. Such policies should be clear and specific
with respect to whether employees may telecommute, how often, and
when, and with respect to the consequences of an employee's
refusal to abide by these policies. Ideally, any telecommuting
arrangements or policies should be referenced directly in
employment agreements. An employer will likely benefit from
ensuring that its telecommuting policies are balanced, reasonable
and respectful of employees' needs.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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