Canada: Working Remotely Or "Remotely Working"? What Every Employer Should Know (And Do)

Last Updated: February 7 2019
Article by Stephen Shaddock

Most Read Contributor in Canada, February 2019

It can be called many things: working from home, working remotely, telework, telecommuting, etc. But the result is the same — an employee performs their duties outside of the workplace including, in many cases, from their home.

There may be sound business reasons for allowing employees to work remotely, but what are some of the legal considerations? This article covers some essential legal issues every employer should know about and policies that should be adopted on remote working arrangements.

Do employees have a right to work remotely?

No. An employee does not have an inherent right to work from home or other location.

Employees may, however, become entitled to work from home by the terms of their contract, a workplace policy, or if management has agreed to or tolerated the practice. A right to telecommute may also arise if it is part of an accommodation under human rights law (e.g. the employee has a disability arising from a physical injury limiting mobility, or must be home to help look after an elderly relative1), subject to undue hardship on the employer.

Employers should use clear, objective criteria to decide who can work from home. If arbitrarily applied, the policy may lead to claims for discrimination (e.g. disability, gender, race, ethnic origin, etc.) and possible legal action.

Can employees work from anywhere they want?

An entitlement to work remotely does not give employees freedom to work wherever they want. Absent a workplace policy or agreement to the contrary, the employer still has the authority over where work is to be performed.

This may be an issue if an employee wants to use multiple locations (e.g. home and cottage), or moves to a location not suitable to the employer (e.g. different time zone, limited access to technology).

If a policy or agreement is silent on location, it can open the door for an employee to work from different locations than originally contemplated — within reason.

In Ernst v. Destiny Software Productions Inc. (2012 BCSC 542), the employer, based in B.C., entered into an agreement with an employee, who lived in Calgary, allowing him to work remotely. The agreement did not specify location for working remotely. The employee interpreted this to mean 'anywhere' and relocated to Cabo San Lucas, Mexico. He was terminated when he refused to return to Canada and sued the employer. Appropriately, the court held that this was far beyond the employer's expectation and dismissed his claim for wrongful dismissal.

Do employment standards and occupational health and safety laws apply outside the office?

A key feature of employment standards legislation is that you cannot "contract out" of its provisions. The result is that these laws — covering hours of work, overtime, statutory leaves, etc. — apply equally to work performed by employees at the office, at home, or other remote location.

When it comes to occupational health and safety legislation the case is not as straightforward. There are few court and tribunal decisions on this issue. Further, some decisions have been contradictory.2 As a best practice, employers should develop a clear policy to ensure that the home worksite is suitable from an occupational health and safety perspective.

What about insurance and other liability issues?

Working remotely can also raise insurance coverage issues about the safety of the employee (or others) at the remote "worksite", the security of information and data, and potential damage or lost company property.

In most cases, general liability insurance policies will cover employees working remotely. However, employers should review these policies and consult insurers to be certain. Additionally, employees should be required to confirm their home insurance policy and coverage, particularly in the event of injury or property damage.

How will information be kept private and confidential?

Maintaining privacy and confidentiality are challenges in any location. Employees working in locations and on networks the employer has little to no control over (e.g. home offices, coffee shops, libraries, hotels, airports, etc.) can increase those risks.

To protect sensitive and confidential information, employers should consider the following questions:

  • What information will the employee be accessing?
  • Will the employee be using his/her own equipment, or company equipment?
  • How will information be transported (USB, email, hard drive, etc.)?
  • What locations will the employee be working at? Are there special security concerns?
  • What technology is available to improve the security of data out of the office?

Answering these questions will help an employer to take appropriate measures to safeguard information.

What are the pitfalls of cancelling an employee's remote working arrangement?

If telecommuting is a fundamental term of employment (i.e. created by written contract, workplace policy, or an employer condoning the practice for a long period of time), then the employer must provide reasonable notice before cancelling the arrangement and recalling the employee. In other words, if a worker has the right to work from home, an employer cannot simply demand they immediately return to the office since it would be a unilateral modification of the terms of their employment.

Consider the recent case of Hagholm v. Coreio Inc. (2018 ONCA 633), where an employee was permitted to work from home three days a week. When the company was sold, the new owners informed her she had to return to the office. She refused and sued the employer. The courts found that this constituted constructive dismissal since the employer unilaterally changed the terms of her employment, and awarded her damages.

Footnotes

Devaney v. ZRV Holdings Limited, 2012 HRTO 1590.

2 For example, see Ontario decisions of the Workplace Safety and Insurance Appeals Tribunal Decision No 2249/16 (2016 ONWSIAT 2410) and Watkins v. The Health and Safety Association for Government Services (2013 CanLII 57037).

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions