When an employee makes a request to work remotely, the employer has several considerations to address from a legal and business perspective
Employees often request to work from home. This request could be on a specific-daysper- week arrangement, a trial basis working every day from home or on a sporadic basis, depending upon the particular preferences of the employee.
Employers considering these requests often have difficult decisions to make. From a legal perspective, here are a few considerations they should address:
The impact on other employees
Almost inevitably, granting such a request, in whole or in part, will cause other employees to consider making the same request. Employees whose requests are refused could feel they have been unfairly treated, and they may also assert that they are being discriminated against on some prohibited ground under the Human Rights Code on the basis that they are being refused similar treatment or consideration given to another employee.
Issues around supervision
When an employee works some or all of their time from home, it may be more difficult for a supervisor to gauge that person’s work performance, unless performance is based entirely on statistically or numerically generated objectives by the employer.
Supervisors who perform evaluations that affect compensation must, therefore, feel that having a subordinate employee working from home does not impact their objectivity or their ability to assess the employee’s performance.
Whatever work-from-home arrangement is made should be documented. This avoids confusion or misunderstanding as to what was actually agreed to. For example, any work-from-home arrangement should be specific as to the hours the employee is expected to work.
Furthermore, employers should always put in writing a clear acknowledgement by the employee that the employer reserves the right to revert to the original arrangement of the employee working at the office.
Otherwise, the employer may be faced with a constructive dismissal allegation should it allow a work-at-home arrangement and then attempt to reverse this arrangement at some point down the road.
An employer obviously has no ability to monitor the protection of its confidential information when that information is retained outside its premises. Employers should, therefore, ensure that all electronic documents to which the employee working from home has access are protected in the same manner as if the employee was working in the office.
In particular, should the employee have documents in hard copy form, measures must be taken to ensure that these documents are not seen by or fall into the hands of third parties who may be in the employee’s home, with or without permission.
Health and safety
While the Occupational Health and Safety Act does not apply to work performed in private residences, at least in Ontario, no such broad exemption applies with respect to workplace compensation in Ontario.
Thus, an employee who suffers a slip and fall at their premises arguably is entitled to benefits as an injured worker, notwithstanding that the employer has no control over the premises. If so, it may be appropriate for the employer to document an arrangement whereby it is entitled to inspect the premises either before the work-at-home arrangement or, at the very least, upon learning of an employee’s reported injury.
Another way to address this issue is for the employee to provide proper documentation that their home is adequately insured.
If a work-from-home arrangement is made with an employee primarily for the purpose of accommodating an employee under a code-protected category (such as allowing an employee to take children to and from school), the employer should be concerned that withdrawing the arrangement, even for legitimate business reasons, might be seen as withdrawing an accommodation that it put in place for that employee.
Ultimately, employers must consider not only the legal issues that arise with respect to work-at-home arrangements but also the business issues. On the one hand, refusing to allow for this arrangement because of concerns over legal issues may be the appropriate decision, but if the employer is at risk of losing a good employee because such an arrangement cannot be put in place, the loss to the business may be more severe and apparent.
Thomas Stefanik is a partner and head of the employment and labour group at Torkin Manes in Toronto. He can be reached at (416) 777-5430 or firstname.lastname@example.org.