Unlike previous Air Canada decision, fall on stairs did not occur during course of work
Just over a year ago, remote work safety was in the spotlight when a Quebec tribunal decided to allow a worker’s claim for compensation after they fell on the stairs.
The Air Canada employee had just left her home office when she injured herself.
A very similar case recently cropped up in Quebec — but with the opposite effect: The worker’s claim was denied, despite the employee falling on stairs near her home office.
It’s encouraging news for employers — but these sorts of cases are really going to be fact-driven, says Marty Rabinovitch , a partner at Devry Smith Frank in Toronto.
“Ever since the pandemic started, and a lot more people were working from home, we're likely to see more of these cases,” he says. “And the adjudicators are just going to have to figure out where to draw the line.”
Issues regarding telework and safety are still a very prevalent issue, says Shane Buchanan, lawyer at MLT Aikins in Saskatoon. And while most employers have at this stage figured out a strategy around work from home, it is still an issue that comes up.
“This is a challenge both for employers and employees.”
Work-at-home injury occurs in 2020
Nancy Allard had worked as a customer service agent for Promutuel Horizon Ouest since 2013; starting in March 2020, she worked from home.
But in June 2020, Allard was on a lunch break when she fell down the stairs leading to her yard and suffered a sprain and fracture to her right ankle. She filed a claim for a work-related injury with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST).
But the commission refused the claim. It said that although an unforeseen and sudden event occurred, causing her injury, this event did not occur in the course of her work; so Allard challenged the decision through the Administrative Labour Tribunal.
However, the tribunal agreed with the earlier decision.
While there was an injury according to Quebec’s Act respecting industrial accidents and occupational diseases, it did not occur during her “course of work,” which considers six factors:
- the place of the accident
- the time of the accident
- the remuneration for the activity performed by the work at the time of the accident
- the existence and degree of authority or subordination of the employer when the accident occurred
- the purpose of the activity carried out by the worker at the time of the accident
- the connection and relative usefulness of the worker's activity with regard to the performance of the work.
In addition, it is also important to determine whether the accident occurs while the worker is performing an activity in their “personal sphere,” as opposed to an activity in their professional sphere, said the tribunal, citing a 1952 decision by of the Supreme Court of Canada, New Brunswick (Workers/Workmen's Compensation Board) v. Canadian Pacific Railway Co.
The tribunal also said that Allard worked from an office in the basement of her house, and she had a fixed schedule, with a lunch break from 12:30 pm to 1:30 pm. That day, when she took her lunch outside to eat, she fell when she was heading back inside, in trying to retrieve her cellphone when it dropped.
In taking her break, Allard was unpaid and disconnected from the employer’s network, plus she dropped her personal cellphone, not a work phone, said the tribunal.
As a result of these various factors, the tribunal concluded that Allard’s accident occurred in her personal sphere, not in the course of employment.
Reversal from Air Canada decision
The decision is notable for its similarity to the late 2021 Air Canada decision — and the different outcome.
In that case, the Quebec labour judge ruled that a call centre employee who worked from home was eligible for workers’ compensation benefits after she injured herself from a fall down the stairs going from her home office to her kitchen while on a lunch break. The judge found that the employee’s injury was a “sudden and unexpected event that occurred during work.”
The judge also found there was a “temporal proximity” between disconnecting from her assigned work and the unforeseen accident.
Ultimately, the tribunal in the most recent case was tasked with determining whether or not this particular accident occurred in the course of the employee’s work, says Rabinovitch.
And the decision does make sense, he says, citing factors such as the employee clearly being on her lunch break, the accident taking place outside and the worker dropping her personal cell phone, not a work phone.
“If you look at all of the facts combined here, there really isn't a whole lot to tie this to the particular workplace in that employee’s house,” he says.
On the other hand, Rabinovitch says he’s not sure he agrees with the Air Canada decision “because the employee clearly was not working at the time. But if there's going to be a line that these adjudicator bodies have to draw, I mean, I think that the Air Canada case is just about where that line is.”
In that case, the accident occurred only moments after the employee had signed off for lunch, he says, “so I think that probably resonated a little bit with the tribunal there and they said, ‘Well, technically the employees not working,’ but it was just so close to her ending her shift that they decided it differently.”
It is a subtle difference, says Buchanan.
“The phrasing they used in this case is that the injury occurred during the ‘parts of her break’ whereas, in comparison, it was, in Air Canada, immediately at the end of the break. So it is a very small difference in the facts... in this case, they found that that there was a disconnection from the workplace, it was no longer part of her job.”
The Air Canada case is similar to a scenario where a person is leaving their office to go for lunch, but slips on the stairs in the office building, he says, while the Allard case is like a person leaving the office property for lunch and slipping on stairs that aren’t their employer’s.
Monetary considerations of workplace injuries
While Quebec cases can differ quite a bit from the rest of Canada and not be applicable, this particular case would apply, says Buchanan.
“You could probably expect a similar outcome in other provinces, but would need to just look at the specifics of their WCB language and any case law interpreting that language.”
Of course, this kind of decision matters for employers because there are the costs of workers’ compensation, says Rabinovitch. In Ontario, for example, assuming you're an employer who has WSIB coverage — either because they are required to under the legislation or they've chosen to as an employer with optional coverage — and your employees are making WSIB claims, that will impact your premium, he says.
“There is a monetary consideration for employers.”
Employers also want employees to be healthy, otherwise they might need to take leaves of absence or need accommodations, and that will affect issues such as productivity and morale, says Rabinovitch.
Designating the home workspace
However, there are steps employers can take to mitigate the risks, says Buchanan.
“One of the best ways to address telework is to ensure that employers have a telework policy and/or a telework agreement with individual employees where you can address a whole wide range of issues, with health and safety just being one.”
But the line can blur when it comes to the home and work, and how that’s defined, he says.
“Some of the steps employers could take would be requiring employees to have a defined workspace within their home; for example, a home office or a spare bedroom. And employers may want to conduct an inspection of that workplace, either with the employee sending photos, or perhaps a Zoom call where the employee shows the working space, just to ensure it's an adequate and safe working space.”
While privacy concerns can arise, generally, if the employer restricts the inspection to just the workspace area for the purposes of maintaining employee safety, “you can mitigate any concerns regarding privacy,” says Buchanan.
A clear working-from-home policy should require an employee to choose a dedicated workplace in their house or home, says Rabinovitch.
“In some cases, an employer might even say, ‘Look, once you figured out where that workspace is going to be, we want to get on a video call with you and we just want you to show us where your workplace is, so we can confirm that it's safe.’ And if there's any potential safety hazards that the employer sees… something can be done about that, before there actually is an injury.”
As part of that, employers may want to do an ergonomic assessment to confirm the home office is acceptable.
“There are some employers who will offer their employees help with purchasing ergonomically appropriate equipment, up to a certain price, to make sure the employees are comfortable and not getting hurt, and might be able to work longer and work more productively. So it benefits the employer too,” he says.
Defining hours of work at home
Another important consideration for employers when it comes to remote work safety is clearly defining what the employees’ hours of work are going to be and what their duties are, says Rabinovitch.
That could mean, for example, stating the hours are from nine to five in an employment contract or a work-from-home policy.
“These cases are really going to turn on all of the specific facts, but if the injury occurs outside of the employee’s normal hours of work, that's going to be one factor that would weigh against it being considered an injury that occurred in the course of employment,” he says.
Having defined work hours could make a difference if, for example, the worker is injured on a defined, unpaid break, says Buchanan.
The remote work policy could also cover expectations regarding childcare, ownership of equipment and tools, and the dress code for virtual meetings.
“There's a wide range of issues that can be addressed in remote work policies.”
