A Legal Perspective for the Flexible Workforce

Just because an employee is out of sight, doesn’t mean they are out of mind.

Regardless of their “workplace,” remote workers are entitled to the same legal consideration as on-site workers. Read below to learn what legal considerations an employer has when their workforce works from home.

HEALTH & SAFETY: INJURIES AT HOME

The issue facing employers around workplace injury, when the accident occurred at home or off-site, is WHAT the employee was doing WHEN the injury happened.

This is the test: An employee must be “in the course of their employment” when an accident occurs in order to be eligible for Worker’s Compensation coverage. For example, if the employee is getting a coffee and trips on a toy and breaks their ankle, they ARE in the course of their employment because it’s assumed that employees will rise from their desk to get a beverage. However, if the employee gets up to do laundry and trips down the stairs breaking their wrist, the argument would be that the employee had taken themselves out of the course of their employment by performing tasks that are in no way relevant or related to their job duties.

The problem is that there are many grey zones. For example, an airline steward was on a layover and got mugged on the street. WSIB found she was still in the course of her employment because she was on a layover and had no choice but to be in that city. Had the airline steward gone skiing and broken her leg, she would have taken herself out of the course of employment.

If an employee claims a workplace injury, regardless of their location, a Form 7 should be issued and an accident investigation may be required. A problem is that Workplace Safety Inspections are not routine for employees working from home, making injury prevention and accident investigations more difficult.

Under Worker’s Insurance (WSIB), there are many claims of repetitive injuries. Employees should be set up with proper ergonomics in mind, and specific to their needs. Employers will want to discuss the physical set-up of the employee’s home workspace including, but not limited to, desk height, chair, ergonomic keyboard, etc.

CLAIMING OVERTIME: WHAT IS “OVERTIME” AT HOME?

An employee can appear to be logged in at all times – and it may be difficult for an employer to know if they were working, and thus determine what constitutes overtime. What if the employee stopped working at the end of their day, and then took a work call later in the evening – at what point did work end and resume again? What if the employee is working on and off on a public holiday like Canada Day – is holiday pay required? The best way to address “overtime from home” or “statutory holiday pay from home” is to require all employees to request and get authorization for working overtime in advance of overtime being performed.

LOCATION OF WORK: ANYWHERE, CANADA, OR SAME CITY?

In the context of a virtual work arrangement, it’s important that the employer spell out what is considered “home” or the acceptable distance from which the employee can reside from the place of work. In other words, an employee cannot simply move to another country, another province or another city without express permission from their employer, unless the employment agreement states that the location is appropriate. An employer can decline a work location that is too far when and if it’s clear in the employment agreement.

RECALLING WORK-FROM-HOME OR REMOTE WORKING ARRANGEMENTS

Sometimes, work from home options are informal and may not be an expectation of the employer or employee. When remote work options are permanently available, they become an expectation and may be seen as a right – in which case the employer can’t change the work arrangement at a moment’s notice. If remote work is seen as a benefit, then changing it requires: a notice period similar to notice of termination; offer and acceptance in writing with proper time to seek legal counsel; and it cannot be used as a punitive measure by the employer.

Employers Guide to a Flexible Workforce

For technology and legal considerations, as well as best practices for the employer and employee, download our guide here.

Download the guide here