For many years now, employers have allowed employees to work
from outside the traditional workplace, and especially from home.
This type of arrangement, known as "teleworking" or
"telecommuting", grew rapidly in popularity in the 1990s
and has stabilized at around 10% of the workforce since the
Several factors explain the attraction of teleworking:
developments in information technology, balancing work and family
life, the cost of leasing traditional office space, and even
While it is difficult to precisely define telework, given the
various conditions under which it can be performed, it can be said
that teleworking consists of performing work outside of the
employer's place of business, on a part-time or full-time
basis, whether or not information technology is used.
Teleworking is a new form of work that is however subject to
long-standing laws and regulations that unfortunately are not
always ideally suited to this new reality.
When it comes to preventing and compensating occupational
injuries for example, it is generally recognized that a person
performing telework falls within the definition of a
"worker" in both the Act Respecting Occupational
Health and Safety (OHSA) and the Act Respecting Industrial
Accidents and Occupational Diseases (IAODA). In the same vein,
the courts recognize, provided certain conditions are met, that the
home of an employee performing telework can be equated with a
workplace within the meaning of the OHSA.
This thus means that employers whose employees perform telework
are subject to the same obligations towards them as towards
employees who work in one of the employer's places of
This implies that the employer remains responsible for
preventing a work-related accident or an occupational illness
suffered by an employee working outside its place of business, and
in the event of such an accident or illness, the teleworker is
eligible for all of the benefits provided for in the IAODA, which
will necessarily have an impact on the employer's file with the
workers' compensation board (CNESST).
The fulfilment of the employer's prevention obligations,
legitimate as they are, raises important issues having to do with
the employee's privacy and the inviolability of his or her
home. Thus, to what extent can the employer ensure that the
employee's workplace is in good order and equipped with
adequate safety features, without infringing the employee's
privacy rights? By the same token, can a CNESST inspector carry out
a workplace inspection when the workplace is in the employee's
There is also the delicate question of supervising and
monitoring the employee's activities while teleworking.
Technological developments allow the employer to monitor the use of
IT tools (computers, telephones, etc.) but this becomes more
sensitive where the employee is working from home and sometimes
uses technological equipment provided by the employer for personal
While the popularity of telework has remained stable for the
last few years, one thing is certain: this form of work is here to
stay. Thus, as the legal ground-rules governing teleworking are not
as clear as they ideally should be, employers should adopt a policy
in this regard setting out terms and conditions, and the potential
consequences for not respecting them.
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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