For many employers, the last 15 months has been a forced experiment on whether large segments of their workforce are able to effectively and efficiently work from home. Some employers have been surprised by how smoothly operations can run with employees working remotely. Other employers have learned that work-from-home arrangements – especially combined with childcare responsibilities and distance learning – have been a real struggle for some staff.
At this point, until restrictions are further lifted, employees who can work from home should be doing so and, even then, many employees will not feel safe returning to the workplace until we are closer to herd immunity or, at the very least, a significant percent of the workforce has been fully vaccinated. This will hopefully occur by early fall with Trudeau having pledged that all Canadians who want to be vaccinated will have their two jabs by September. To be prepared, employers should decide upon and communicate their back-to-the-office plans for the fall over the next couple of months.
That said, there is no doubt that the pandemic has caused a seismic shift in where work will be performed in the future.
In a recent survey of 2,000 people by KPMG, most Canadians want to return to a physical workspace or office. They miss their colleagues. Their mental health is suffering. They are concerned that they could be perceived by their employers as less committed and then overlooked for opportunities or discriminated against if they keep working remotely. However, they don't all want to return to the office on a full-time 5 days per week basis. Three quarters of those surveyed want a "hybrid" model that allows some flexibility to work remotely.
These survey results align with the general sentiment that I am hearing. Employees like the greater flexibility that working from home affords. It saves them time without the daily commute and money otherwise spent on mileage, parking, eating out, work attire, etc. It also allows them to spend focused time completing work without the frequent interruptions of office "chit-chat". Many do not, however, want to work exclusively from home.
With all of this in mind, it will make good business sense for many employers to allow employees who can work remotely to continue to do so – at least some of the time. Doing so will assist with employee recruitment and retention. It may also reduce overhead costs when, for example, employee parking and workstation spaces are no longer needed or can be shared.
What are the top considerations for employers when allowing employees to work remotely
Location of remote work
Employers should set clear expectations as to where it is permissible to perform the remote work. For example, if it's expected that the remote work will only occur in the employee's personal residence – as opposed to being performed in a local coffee shop, a cottage or other vacation property, or other remote location – then make this clear. Similarly, make it clear if the employee must have an actual private office or workstation within the approved work location from where to perform the remote work.
Prudent employers should not give broad authorization to an employee to work remotely from their personal residence wherever it may be situated from time to time. Instead, place some restrictions on the geographic location of the personal residence or require any relocation to be approved in advance by the employer. This is especially the case where the employer wants the employee close enough to the workplace to attend from time to time, or where the employer decides to cancel the remote work arrangements. Consider the difficulties, for example, in a situation where an employee has permanently moved their family from Toronto to Sault Ste Marie to be closer to extended family on the understanding that they would be working from home.
Further, it is strongly recommended that employees not be permitted to work remotely in another province or country without careful consideration of the implications of doing so. This is because employment laws differ from jurisdiction to jurisdiction. Also, there could be tax implications for the employer and/or employee associated with establishing a work location elsewhere.
Duration of arrangements
Employers should set clear expectations as to the duration of the remote work arrangements. Is it intended to be on a trial or temporary basis only and, if so, until when? Or is it intended to be of an indefinite duration? Silence would generally suggest an indefinite duration.
It is recommended that, regardless of the expected duration, the employer reserves the ability to cancel the remote work arrangements and expect the employee to return to working in the workplace or office on a full-time basis. Consider whether to also allow the employee this same latitude.
Frequency of arrangements
Not all employees will want to work remotely 100% of the time, nor will their employers want them to do so. There may be certain types of work that can only be performed in the workplace. There may also be, from time to time, important meetings that are best to occur in the workplace face-to-face – rather than over the phone or virtually using a platform like Zoom or Microsoft Teams. It's harder to foster collegiality, grow company culture, and be involved in mentorship opportunities, when working remotely.
Employers should, therefore, put careful thought into the frequency of the remote work arrangements. Will the employee only work remotely? Or will the employee work part of their time in the workplace and the other part remotely? If so, what is the right balance? Will there be a set schedule (e.g. Tuesday and Wednesday at the office; Monday, Thursday and Friday at home), or will there be more flexibility (e.g. approximately 40% of working time at the office and 60% working remotely, the exact schedule to be determined from week to week based on business need)?
Requirements of home office
Remote work arrangements generally require an appropriate workstation that includes a desk, chair, computer, printer or other equipment, supplies, etc. Determine which of the employer or the employee is responsible for providing these items. For those items provided by the employer, ensure that it is clear that these items continue to belong to the employer and must be promptly returned when employment ends (or earlier when requested by the employer).
Internet speed and stability are also key requirements for most employees to work effectively and efficient from a home office. Minimum internet thresholds should be determined by the employer and communicated to the employee as a condition of remote work.
Employers should also not forget about insurance coverage. Determine whether the employer's business insurance coverage or the employee's home insurance coverage will extend to cover the remote work. If the latter, require proof of coverage.
Responsibility for costs of home office
Costs associated with a home office generally include rent or mortgage, property tax, insurance, utilities, repair, maintenance, furnishings, equipment, supplies, internet, home/cellular phone services, etc.
If any of these costs will be directly paid or otherwise reimbursed by the employer, specify which costs and the terms and conditions of the payment or reimbursement. Ensure that the employee understands that they are responsible for all other costs; however, will be provided a Form T2200 to the extent applicable.
Hours of work expectations
Employers should consider what it expects in terms of working hours when working remotely. Some employers will need or otherwise want the employee's hours to be consistent both in and outside the workplace (i.e. same start time, end time and breaks). Other employers will be fine providing greater flexibility, allowing employees to schedule their own working hours so long as they work the requisite number of hours each week, they get the work done on time and when needed, and they otherwise meet business needs. Note: employers may need to provide such flexibility to employees as a form of accommodation for those trying to balance childcare / remote learning needs in order to comply with human rights.
How to protect confidential or proprietary information
One downside of remote work is an enhanced risk of disclosure and misuse of confidential or proprietary information. Spouses, children or other family members are often around. Friends or visitors may come into the home. If appropriate protocols are not in place, they could overhear sensitive work-related conversations, find unsecured confidential documents, or otherwise read emails or other electronic documents on the employee's work computer.
Employers need to be cognizant of these risks and implement expectations on what employees must and must not do to keep information secure (both physically and electronically). This may include passwords (including on WIFI networks), as well as locked computers, filing cabinets, drawers and offices. Work-related discussions should also be had in private locations (ideally using headsets) whenever others are at home.
How to comply with applicable employment laws
Last but not least, we cannot forget that working remotely does not mean that employment laws no longer apply. Careful attention needs to be taken on how to ensure compliance, which may be more difficult to monitor when working remotely.
For example, employers have an obligation to take every precaution reasonable in the circumstances to protect health and safety in the workplace. Under both Ontario's Occupational Health and Safety Act and Workplace Safety and Insurance Act, 1997, an employee's home office or other remote work location will be considered to be a "workplace". Employers, therefore, need to ensure that these remote workplaces are safe and compliant with applicable laws. In doing so, special consideration should be placed on ergonomic requirements, safety risks if third parties allowed into home offices, ability of JHSC member to attend to survey the remote workplace, etc.
Another good example is the requirement to ensure compliance with applicable employment standards under Ontario's Employment Standards Act, 2000 or, for federally-regulated employers, the Canada Labour Code. It should be clearly communicated to employees that, despite working remotely, they must: (a) comply with the daily and weekly legislative restrictions on working hours, which includes maximum daily or weekly limits, required time off work, required eating periods, etc.: (b) not work overtime hours (unless overtime exempt) without approval by the employer; and (c) promptly report when they are taking time off work and/or otherwise find themselves unable to work the requisite number of hours required in a given workweek. Ideally either the employer will have a mechanism to track working hours, or the employee will be required to record and report their working hours to the employer, as proof of compliance.
Many employers are finding that they need to adapt to changing times, but proper forethought and planning will help offset any unexpected liabilities that may arise with these remote work arrangements.
If you have any questions or require any assistance with developing a policy or communication to your workforce on remote work, please feel free to reach out to any of the lawyers in Siskinds' Labour & Employment Group.
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.