Given the COVID-19 pandemic, many employees and their employers are now adjusting to a "new normal" of work-from-home ("WFH") arrangements. This update sets out important legal and practical considerations for employers reviewing their WFH practices.
Many companies have existing policies applicable to WFH arrangements, but most of these policies were not drafted with pandemic planning in mind. Existing policies should be reviewed and revised to ensure that they provide for the unique needs of employees in long-term WFH arrangements. Employers without policies on WFH arrangements should consider creating a policy that provides clear expectations for employee conduct and which provides for the protection of company property and confidential information.
Given the heavy reliance on technology to facilitate successful WFH arrangements, employers should review their technology policies to ensure (a) that employees are equipped with the devices they need to maintain their work responsibilities, (b) that ownership, privacy and acceptable use expectations are clear, both for the devices and for the information stored on them, and (c) there is clarity regarding what technology-related purchases and expenses are eligible for reimbursement.
Expense Reimbursement Policies
Employers should review their expense reimbursement policies to ensure they adequately address the various expenses that may arise from a WFH situation, including internet, equipment, technological infrastructure, mobile phone bills and software upgrades. While an employer may decide to implement or expand upon its eligible expense reimbursements for the duration of the COVID-19 pandemic, it may not necessarily be appropriate or expected where employees were occasionally working from home prior to the pandemic and already have unlimited home internet plans.
Confidentiality and Protection of Company Property/Information
Practically speaking, many WFH scenarios involve a reduction of control over confidential information, document storage and data protection, often as the result of the possession and duplication of materials outside of the office (including through printing, scanning, or storage on personal devices). In order to minimize these risks, employers need to set clear expectations for the ongoing protection of company property and confidential information. To that end, confidentiality and privacy policies should be reviewed to determine whether they include rules with respect to the following:
- Secure storage of company information on personal devices and in personal residences, whether temporary or permanent, and whether through electronic or physical storage mechanisms.
- Manual or electronic copying of materials.
- Password and encryption requirements on phones, laptops, mass storage devices and other devices, whether company owned or personal.
- Use of company devices for personal purposes.
- Protection of the privacy of electronic screens while working by ensuring screens are not visible to others.
- Directions regarding the conduct of business-related telephone or video conferencing calls in public spaces.
- Use of personal Wi-Fi networks that are secured and password protected to help guard against external interference and risks to company property.
- Clear reporting lines and processes in the event of a possible or known security breach.
- Processes for the disposal or destruction of company records and information.
- An undertaking from employees to protect employer equipment, records, and materials against unauthorized access, use, or destruction.
Policies should be clearly communicated to employees and training should be provided to ensure all employees understand their obligations.
Maintaining employee productivity in a long-term WFH arrangements is critical to sustainable success. As workplaces transition to this "new normal", employees should be reminded that regardless of workspace, regular performance expectations continue.
Tracking Hours Worked
Given the lack of direct supervision that comes along with WFH situations, employers need to be very mindful of overtime and hours of work rules. If an employee is overtime-eligible, employers should be clear about parameters around working hours and policies for overtime work, including where pre-approval is required for overtime hours. But that is generally not sufficient – employers also need to be actively monitoring employee working hours to ensure that employees are staying within boundaries vis-à-vis working time and that there is no condonation of unapproved overtime. The same applies to rest periods, meal breaks and maximum hours of work.
Monitoring, Encouraging and Addressing Productivity
While employees are no longer reporting to the office, work productivity can continue to be measured. We recommend employers consider the following methods to track work productivity:
- Mandating a required timeframe where all employees are expected to be working and available. This can mirror the time that they are usually in the workplace, though it may need to be adjusted based on child and family obligations.
- Requiring employees to track their hours of work and to report hours worked to their supervisor regularly.
- Maintaining accountability by having supervisors and managers set expectations and vocalize concerns as they become known.
- Scheduling routine conference calls to maintain communication channels of the employee's work for the week.
- Offering assistance to ensure that employees feel supported and are set up to succeed in their WFH arrangements.
In most circumstances, an employee logging on for a set time throughout the day does not guarantee their productivity, and an employee logged off of a work system may still be working offline. Ultimately, a thorough understanding of the employee's work and the likely period of time it would take to complete in a WFH setting will be important in determining whether there is any performance issue.
Employers must consider how they will keep employees accountable and minimize reductions to efficiency as much as possible. Employers should continue their regular processes for employee supervision, evaluation, and discipline. Managers and supervisors must continue to check in with their employees and to document issues, especially if they feel that their standard expectations are not being satisfied.
Normal performance processes should not be abandoned because of COVID-19. Where an employee is not effectively conducting work, employers should continue their standard practices and implement the measures that they would within the workplace. This will keep employees incentivized to maintain work quantity and quality. Performance management processes often include regular evaluations, performance improvement plans (PIPs) and, where appropriate, may escalate to progressive disciplinary measures.
HEALTH, SAFETY, AND WORKERS' COMPENSATION
As employees shift to a home-based workplace, employers should consider ways to promote workplace health and safety.
Employers should check in with employees to ensure that their home workspace is safe, free from hazards and facilitates productivity. Employers may consider implementing minimum standards for WFH arrangements. Employers can require employees to submit photographs of their workspace to ensure compliance with employer expectations. Employers may also consider having employees enter into an agreement that sets out expectations on the health and safety of their home workspace.
Employers should also consider whether the home workspace is insured. Many employer liability policies will encompass WFH arrangements, but this should be verified. Employees may alternatively be covered by their personal home insurance policy.
Whether employees are working from home or in person, there are critical practises that each employer should encourage employees keep up to maintain the health and safety of the workspace. These practices alleviate the risk of spreading COVID-19, which include:
- Practising good hygiene and regular hand washing.
- Maintaining clean workspaces by routinely disinfecting equipment and surfaces.
- Integrating breaks and rest periods.
- Practising social distancing by maintaining space between other persons and minimizing social contact.
In Quebec, according to the CNESST, workers who become infected with COVID-19 during the course of their employment may be entitled to the usual benefits and services provided under the Act respecting Industrial Accidents and Occupational Diseases (AIAOD). To do so, the worker must first see a physician. The physician will make the diagnosis, notify the employer and complete the worker's claim so it can be submitted to the CNESST. For the claim to be accepted, the workers must demonstrate that they came into contact with the virus through or in the course of their work. The CNESST insists that it is important that the work connection be demonstrated conclusively. This also means that indirect contamination (e.g. if a family member is infected and infects the worker) is not compensable: only the worker who contracts the disease at work can be compensated accordingly. There can be no claims for secondary exposure. Finally, as with any other types of employment injuries, workers seeking compensation for an industrial accident must fill out the Worker's Claim form and send it to the CNESST along with a medical certificate.
In British Columbia, WorkSafeBC has issued guidance regarding health and safety responsibilities when employees are WFH. In particular, employers should ensure that they have a basic health and safety policy for WFH, and that each party understands their role, duties, and responsibilities. The policy should, at a minimum, require employees to conduct an assessment of their workplace and report any hazards to their manager. Other items to consider in the work-from-home policy include protocols for safe evacuation; how to contact the employer in case of an emergency; a discussion of safe workplace practices and how to report any work-related incidents or injuries; and ergonomic considerations. WorkSafeBC also reiterated that many health and safety roles, rights and responsibilities remain applicable to work-from-home situations, including reporting workplace injuries, the worker's duty to follow safe work procedures, and check-in procedures if the worker is working alone or in isolation.
Alberta's Occupational Health and Safety Act applies to most employees, and stipulates that employers must do what they reasonably can to protect the health, safety, and welfare of workers at a worksite.
When a worker contracts COVID-19 as a result of their employment, they may be entitled to compensation from Alberta's Workers' Compensation Board. To claim this compensation, the worker must demonstrate that (1) the nature of the employment has exposure to the infection; and (2) the nature of the employment is the cause of the condition, or creates a heightened risk of exposure. Claims will be determined based on the specific circumstances of each case. Claims will likely be granted for workers who contract COVID-19 and are working in an essential service. The board may accept these claims where a worker has symptoms but does not have a medical report which confirms COVID-19.
Moreover, individuals working from at home work arrangements (including on a temporary basis during quarantine periods) may also be covered under the worker's compensation regime. When these arrangements are authorized by an employer, coverage generally only applies to the defined workspace. Where an individual incurs an injury or illness from an at home work arrangement which may be connected to their work, employers and workers are required to report this to the Worker's Compensation Board. To determine whether the injury is related to work and therefore covered, the Worker's Compensation Board will assess whether:
- The activity was during work hours;
- The activity was for the benefit of the employer;
- The worker was paid for the time;
- The worker was in the space at the time because of their employment;
- The employer had authorized the work arrangement; and
- The injury stemmed from using equipment and/or materials provided by the employer.
Workplace health and safety requirements transfer to WFH arrangements. Ontario's Occupational Health and Safety Act requires that employers "take every precaution reasonable in the circumstances for the protection of a worker." Employers may consider providing employees with guidelines to mitigate the safety risks in WFH arrangements. Employers may also need to consider providing specialized equipment that accommodates an employee's personalized needs.
Ontario's Workplace Safety and Insurance Act applies to remote work arrangements. Where injuries occur during WFH arrangements, employees should report these incidents in the same manner that they would if the accident occurred in the regular workspace. In Ontario, the Workplace Safety and Insurance Board (WSIB) is allowing workers to submit claims for benefits for COVID-19 arising from their employment. These claims are determined on a case-by-case basis, and will consider all relevant circumstances. The determination of these claims will be based on (1) the risk created by employment in contracting COVID-19, which the public is not exposed to; and (2) the board's confirmation of the worker's COVID-19. Demonstrating both of these elements may show that the worker's employment had a substantial contribution to their illness. Even where claims do not meet these elements, they will still be reviewed and considered.
The following factors may also guide the adjudication of these claims:
- The nature of the employment-created risk of contracting COVID-19: This includes consideration of whether a source of COVID-19 has been found in the workplace. It will also review whether the nature of employment and work activities put the worker at risk of contracting the disease from other persons or substances. This includes whether there was potential for transmission of COVID-19 at work through the transfer of infectious substances.
- Confirmation of the worker's COVID-19 condition: This includes consideration of whether the timeline for exposure to COVID-19 and the start of the worker's illness are reflective of the COVID-19 in the workplace. It also includes whether there has been confirmation of the worker's medical diagnosis. If there has not been medical confirmation, there will be consideration to whether the worker's symptoms are clinically compatible with those of COVID-19, and whether they are verified through an assessment by a health professional.
Ultimately, the WSIB will consider whether employment was a significant factor to the worker developing COVID-19. Consideration will also be given to a worker's employment environment, job responsibilities, and use of protective equipment.
CHILDCARE AND FAMILY STATUS ACCOMMODATION
With schools out across the country, the reality for many employees is that they are working from home while their children are home. Many employees also may have relatives who will rely upon them as a caregiver during the pandemic. It is important for employers to understand their legal obligations relating to requests from employees for accommodation in these situations.
Human Rights Considerations
In all jurisdictions other than Quebec, discrimination in employment on the basis of family status is prohibited by human rights legislation. In practical terms, this means that an employee may be entitled to accommodation from their employer to the point of undue hardship for their particular family status-related circumstances. The law regarding what employees need to demonstrate in order to be entitled to accommodation on the basis of family status is somewhat complex and differs slightly in the various jurisdictions, but it requires more from an employee than simply pointing out that they have children and are working from home. Generally, they must demonstrate to some degree that their legal obligation to provide care for the child is engaged and that other arrangements (such as alternate caregivers) are not feasible. Personal preference is generally not sufficient.
Examples of family status accommodation include reduced hours of work in exchange for reduced pay; a flexible work schedule; or a reshuffling of duties. It may also take the form of an unpaid job-protected leave of absence. The analysis of what is required as "reasonable accommodation" on the part of an employer is very context-specific and individualized. Generally, employers may defend against claims of human rights discrimination by demonstrating a bona fide occupational requirement – for example, that the employee's duties can truly only be performed during standard business hours, and any other accommodation would have entailed "undue hardship" for the employer – or by showing that they have accommodated the employee's family status to the point of undue hardship. While the threshold of "undue hardship" is difficult to meet, it is not impossible.
Job-Protected Leaves of Absence Under Employment Standards Legislation
Many jurisdictions have unpaid job-protected leaves of absence under applicable employment standards legislation for caregiving, particularly when a familiar member has a serious illness. Some jurisdictions have also enacted specific statutory leaves to deal with COVID-19. These job-protected leaves of absence may be available to an individual who is seeking accommodation for caregiving purposes and should be taken into consideration by the employer.
This update is part of our continuing efforts to keep you informed about COVID-19. Check our COVID-19 hub and our McCarthy Tétrault Employer Advisor blog for further updates, including in-depth analysis of emergency legislation and government orders in the federal and various provincial jurisdictions. If you need assistance, please reach out to any member of our National Labour & Employment Team.
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.