Canada: Working From Home: Tips And Traps For The Agile Workforce

Last Updated: September 30 2019
Article by Elise Calvert, Jessica Russell and Jonathon MF Ward

It is no surprise that the workplace is not immune to the changes seen in the transition from one generation to the next. Technological advances and shifting values in the workplace are leading to new ways of working. Balancing work, family and personal responsibilities remains a priority for many Canadians, but how an employee achieves this balance is changing. What we are seeing firsthand, and what is borne out by the research of others, is that in seeking to strike this balance, today’s workforce increasingly values autonomy and flexibility over place and hours of work.

This year, Deloitte’s Global Millennial Survey titled “Societal discord and technological transformation create a “generation disrupted”, provides a current summary of some of the expected challenges facing employers given the emerging dominance of millennials and Gen Z’s in the workplace. One of the most startling findings from this report was that out of the millennials surveyed, 49 percent would quit their jobs in the next two years if they had the choice. Roughly a quarter of those same individuals reported leaving an employer in the past 24 months. Generally, the main reasons cited by these employees for leaving their employment included a dissatisfaction with pay, and a lack of advancement and professional development opportunities. In light of these findings, there is a real risk that employers will have difficulty maintaining a stable workforce in the future.

Compared to the traditional full-time work, millennials have indicated that freelance and contract work commonly referred to as the “gig economy”, is appealing. At present only 6 percent of millennials have chosen to enter the so-called gig economy, but 50 percent said they would consider it, and 61 percent advised they would take gig assignments to supplement their existing employment. Reasons for joining the gig economy include the chance to earn more money (58 percent), work the hours they want (41 percent), or achieve a better work/life balance (37 percent). Statistics Canada issued a 2018 study that provides some insight into the association between job flexibility and job satisfaction in Canadians aged 18 to 64. This study examined four aspects of job flexibility including: the order of work (or the sequence of tasks), how the work is done, the speed of work, and the hours of work. In both men and women, control over the hours of work was most strongly associated with job satisfaction. This association was even stronger among younger individuals.

Does an employee need to be allowed to work from home?

There are currently no provincial or territorial laws in Canada that provide employees with an express right to request flexible work arrangements, but such a request may be made under human rights legislation provided it is based on an enumerated ground and any modifications to flexible work arrangements may attract a constructive dismissal claim.

Human rights accommodation requests

Requests for a flexible work arrangement as a form of accommodation are typically founded on one of the following grounds: i) physical disability; ii) family status - children; and iii) family status - elder care. These accommodation requests often include the following arguments:

  • Working from home is the most effective way to address a medical or family status issue;
  • Comparison to other employees permitted to work from home and citing discriminatory or unequal treatment;
  • Arguing that there is nothing inherent about the position that would require they be in the office physically; and
  • Stating that there would be no decline in their availability, productivity or quality of work.

Human rights accommodation requests: Employer strategies

When faced with an accommodation request to work from home, consider the following questions:

  • Is there evidence that the employee needs to work from home in order to receive accommodation (either medical or related to family status)?
  • Regarding a physical disability based accommodation request, is there evidence to suggest that the work from home accommodation is ergonomically fit for the employee’s particular needs?
  • Is there anything about the employee’s position that would preclude their working from home?
    • Does the employee require a high level of supervision (or has the employee demonstrated they do not require supervision)?
    • Have there been performance issues that suggest in-person accountability is required? Are there confidentiality concerns with employee bringing documents home or accessing files from home?
    • Is there remaining or ongoing training required for this employee that would be more effective in person?
    • Are there specific hours the employee needs to be available that can be easier facilitated in the office than at home?
  • Does the employee working from home result in undue hardship for the employer?

Civil basis: Constructive dismissal

Where an employee is provided with the ability to work from home, removal of that privilege during the term of employment may trigger constructive dismissal. The key factor to determining whether removal of work from home privileges will constitute constructive dismissal is whether working from home constituted a fundamental term of employment. Some factors that may indicate whether working from home is a fundamental term of employment include:

  • How long did the employee have the option to work from home?
  • Is working from home a term of the employment agreement, or did it occur over time (vs. a standalone or unofficial policy)?
  • What percentage of the employee’s time were they allowed to work from home?
  • What is the impact of altering the work from home arrangement?
    • How far does the employee need to commute into the office?
    • How reasonable is it to require the employee be present in the office (i.e. is their role entirely capable of being performed remotely)?
  • What is the basis for altering the work from home arrangement (e.g. poor performance vs. desire to increase team’s interactions with one another?

Flexible workplace policies

Where employees commonly work from home, a “Flexible Workplace Policy” may be appropriate. In the event a single employee works from home related to an accommodation request, appropriate documentation of the request, form of accommodation and updates and timelines related to the accommodation should be used instead of a Flexible Workplace Policy.

A flexible workplace policy should include:

  • Statement of the employer’s attitude toward flexible work arrangements (e.g. privilege that should be used sparingly vs. strongly encouraged);
  • Clear statement that the employer has ultimate discretion to allow or disallow work from home arrangement for all employees or any particular employee;
  • Clear outline of performance requirements or expectations of employee;
  • Definition of key terms;
  • Definition of core hours that employee must be available;
  • Clear outline as to what positions qualify for use of the policy;
  • Any limits on the number or percent of employees within a department working from home;
    • methods for confirming these numbers or percentages and scheduling work from home days;
  • Statement allowing management or supervisors to designate key meetings as requiring in-person attendance;
  • Clear statement that modifications to or removal of Flexible Workplace Policy are in the employer’s sole discretion and will not constitute constructive dismissal;
  • Statements to account for Occupational Health and Safety requirements;
  • Minimum standards of equipment (e.g. computer, internet speed, etc.); and
  • Allocation of responsibility for purchasing any required equipment.

Additional Considerations

Occupational health and safety

Subject to limited exceptions, the Occupational Health and Safety Act applies to employees who work from home.

Best practices are to include general statements about employees’ responsibilities to ensure their work space is safe, especially in any applicable Flexible Work Policy. It is important for the employer to pay special attention to any ergonomic concerns raised by employees regarding their work from home space. This can easily slip through the cracks and set the stage for an OHS complaint. Employers should very clearly instruct employees to immediately report any work-related illness or injury, especially when working from home.

Overtime

It’s important to keep in mind that not all employees working from home will be exempt from receiving overtime pay. In light of this, diligently tracking employee hours can be even more important for remote employees. Failure to monitor employee hours could result in the employee arguing they are entitled to additional overtime pay, which can lead to an Employment Standards complaint, (which is free for the employee to pursue, and can include up to 6 months of unpaid overtime), or up to 2 years of wages if the employee brings a civil claim. Best practice is to diligently track hours and ensure that employment agreements and/or overtime policies include the express statement that all overtime hours must be approved in advance in writing.

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 Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
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