Most workplaces in Canada are subject to provincial or territorial occupational health and safety (OHS) legislation. Federally regulated workplaces are governed by the federal OHS laws set out in Part II of the Canada Labour Code (CLC). OHS legislation creates a strong internal responsibility system, which considers health and safety the responsibility of everyone in the workplace including the employer, supervisors, management, and workers. The system is based on the premise that workers have the right to know about potential hazards that they may be exposed to, be part of the process of identifying and resolving workplace health and safety concerns, and refuse work they believe is dangerous to their own health or that of another worker.
During the COVID-19 pandemic, many Canadians are performing work for their employers inside their homes. This raises the question of who has responsibility for potential hazards they may be exposed to while doing so. Below we consider examples of how the subject is approached in two major Canadian provinces, Ontario and British Columbia.
Ontario's Occupational Health and Safety Act (OHSA) requires a member of a joint safety committee to inspect the physical condition of the workplace, or a health and safety representative to do so if such a committee is not required.1 In both cases, the purpose of the inspection is to identify situations that may be a source of danger or hazard to workers.
The OHSA defines a "workplace" as "any land, premises, location or thing at, upon, in or near which a worker works."2 However, s. 3(1) of OHSA provides:
3 (1) This Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith. [Emphasis added]
Accordingly, the duty in the OHSA of a member of an employer's joint health and safety committee or its health and safety representative to inspect the physical condition of the workplace for the purpose of identifying situations that may be a source of danger or hazard to workers, does not apply to the employee's private residence.
There is nothing on the Health and Safety web page of Ontario's Ministry of Labour, Training and Skills Development that addresses responsibility for the elimination of hazards and ensuring the safety of an employee who works for an employer while in their home. However, the federal government's Canadian Centre for Occupational Health and Safety (CCOHS) addresses Telework / Telecommuting. Although the CCOHS does not dictate how these matters should be handled in a written agreement, it encourages the development of a written agreement setting out responsibility for health and safety issues and workers' compensation if a teleworker is injured when working from home, and provides a list of additional important health and safety issues. Furthermore, it states that, "Teleworkers should not be subjected to reduced health and safety standards at home." The CCOHS states in part:
One of the most important health and safety questions that should be answered when working at home is who will be responsible for health and safety issues and worker's compensation if the teleworker is injured. To avoid complications, there should be a written agreement between the employer and the teleworker clarifying these matters. Teleworkers should not be subjected to reduced health and safety standards at home. [Emphasis added]
Other important health and safety issues include:
- Will the employer or the health and safety committee have access to the house for safety inspections? Or, will alternative arrangements be made such as the worker using checklists or submitting photos of the work area?
- What parts of the house will be considered the 'workplace'? Is the bathroom and/or kitchen included?
- That teleworkers must immediately report any incident or injury to their supervisor (just as they would at the office).
- How will incidents be investigated?
As the CCOHS encourages employers and employees to enter into a written agreement that sets out responsibility for health and safety issues and workers' compensation if a teleworker is injured when working from home, employers in all provinces, including Ontario, should consider developing such agreements with any of their employees who work from home with a view to ensuring that these employees "not be subjected to reduced health and safety standards at home." Alternatively, they should consider developing a Work from Home Policy that sets out these responsibilities, with a similar view.
Pursuant to section 3.5 of British Columbia's Occupational Health and Safety Regulation (OHSR):
Every employer must ensure that regular inspections are made of all workplaces, including buildings, structures, grounds, excavations, tools, equipment, machinery and work methods and practices, at intervals that will prevent the development of unsafe working conditions.
Section 2.1 of British Columbia's OHSR provides that the statute "applies to all employers, workers and all other persons working in or contributing to the production of any industry within the scope of the OHS provisions of the Workers Compensation Act." The OHS provisions of the Workers Compensation Act (WCA) define "workplace" as "any place where a worker is or is likely to be engaged in any work and includes any vessel, vehicle, or mobile equipment used by a worker in work." The OHSR further provides for a safe workplace in stating, "A workplace must be planned, constructed, used and maintained to protect from danger any person working at the workplace."3 There is no exclusion in the OHSR or the WCA of persons engaged in work in a private residence. Given the particularly broad definition of "workplace" under the WCA, a private residence may, in certain circumstances, fall within that definition.
Part 4 of the OHSR addresses workers assigned to "work alone or in isolation," which is defined as "working in circumstances where assistance would not be readily available to the worker (a) in case of an emergency, or (b) in case the worker is injured or in ill health."4 The OHSR imposes additional obligations on employers in regard to workers who work alone or in isolation, such as, among other things, hazard identification, elimination and control, and procedures for checking on the worker's well-being. Employers should be aware that where a worker lives alone and/or in a remote location, these requirements may apply.
At minimum, employers in British Columbia should prepare a health and safety policy for working from home that clearly outlines the roles, duties and responsibilities of the employer, managers, supervisors, and employees. WorkSafeBC recommends that employees should be required to conduct their own assessment of the "workplace" and report any hazards to their manager or supervisor. Such an assessment would fulfill the employer's obligation to regularly inspect the "workplace" where the employee is working. Considering we are in the midst of the COVID-19 pandemic, it would not be reasonable for an employer to conduct its own inspection of a worker's home, nor would that be ideal for the employee.
Further, a Work from Home Policy should also include, for example, protocols for contacting the employer and evacuating the home to a safe location in the case of emergency, how to report any work-related incidents or injuries, how education and training will be addressed, and ergonomic considerations.
The Government of British Columbia's web page titled: Safety Inspection for Working at Home, provides a link to a template Telework Agreement. The Telework Agreement appears to be a document for use by BC Public Service employees, though it is a helpful template for employers to work from to develop their own policies.
Employees and employers in all jurisdictions in Canada should be mindful that, as noted above, the CCOHS encourages all employers and employees to enter into a written agreement that sets out responsibility for health and safety issues and workers' compensation if a teleworker is injured when working from home, with a view to ensuring that these employees should, "not be subjected to reduced health and safety standards at home."
The Canada Post Decision
As noted above, federally regulated workplaces are governed by the federal OHS laws set out in Part II of the CLC. In Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, one of the last decisions of the Supreme Court of Canada (SCC) in 2019, the court clarified the extent of a federally-regulated employer's inspection obligations under the CLC and held that it extends only to workplaces they control. Click here for our detailed analysis of the Canada Post decision.
Although statutes in other Canadian jurisdictions may use different language when referring to the duty of employers to inspect workplaces, the SCC's Canada Post decision may support employers in those jurisdictions when they argue that their obligation to inspect the workplace does not extend to workplaces outside their control, such as the personal residence of an employee.
Bottom Line for Employers
Employers are encouraged to carefully review the occupational health and safety legislation in the Canadian jurisdiction(s) in which they operate to determine whether they explicitly exclude application to work performed in a private residence. In a jurisdiction such as Ontario where such an exclusion exists, it is clear that any inspection obligations that an employer may have will not apply to the worker's home. If the applicable statute does not contain such an exclusion, or does not exclude a worker's residence from its definition of "workplace," the employer may reasonably argue that its obligation to inspect the workplace does not extend to workplaces outside its control, such as the personal residence of an employee. As noted above, the decision of the SCC in Canada Post may provide support for this argument. Furthermore, it may be unreasonable to expect an employee to allow an employer to inspect their home during the COVID-19 pandemic, or to expect an employer to inspect it.
During the COVID-19 pandemic and otherwise, employers in all Canadian jurisdictions are encouraged to have a detailed Work from Home Policy and/or to enter into a Telework Agreement with employees working from home. Such an agreement should, among other things, indicate that employees are expected to maintain their home workspace in a safe manner, free from safety hazards, and also set out responsibility for workers' compensation if the employee is injured while working from home. The objective of the policy and/or the agreement should be to ensure that employees will not be subjected to reduced health and safety standards at home, and that the applicable workers' compensation entity will continue to be liable for work-related accidents that may occur while the employee is working from home.
1 OHSA, ss. 8(6) and 9(23).
2 OHSA, s. 1.
3 OHSR, s. 4.1.
4 OHSR, s. 4.20.1.
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.