Hazards at home during the pandemic

How do employees working from home fit into an employer's obligation to protect employees from workplace safety hazards?

Hazards at home during the pandemic

Background
The occupational health and safety system is based on the premise that workers have the right to know about potential hazards to which they may be exposed, 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. But how does this apply to people working from home?

Occupational health and safety (OHS) legislation creates a strong internal responsibility system that considers health and safety the responsibility of everyone in the workplace — including the employer, supervisors, management, and workers. Most workplaces in Canada are subject to provincial or territorial OHS legislation. Federally regulated workplaces are governed by the federal OHS laws set out in Part II of the Canada Labour Code (CLC).

During the COVID-19 pandemic, many Canadians are performing work for their employers at home. This raises the question of who has responsibility for potential hazards to which workers may be exposed while doing so. Below we consider examples of how the subject is approached in certain jurisdictions.

Ontario excludes home office, but federal guidelines promote shared responsibility
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. In both cases, the purpose 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.” However, s. 3(1) of OHSA provides: “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.”

Accordingly, the duty in the OHSA to inspect the physical condition of the workplace does not apply to the employee’s private residence.

Nothing on the health and safety web page of Ontario’s Ministry of Labour, Training and Skills Development 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. The CCOHS 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, “Teleworkers should not be subjected to reduced health and safety standards at home.”

Other health and safety issues include:

  • Will the employer or 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?
  • Teleworkers must immediately report any incident or injury to their supervisor.
  • How will incidents be investigated?

As the CCOHS encourages a written agreement, employers in all provinces, including Ontario, should consider developing such agreements with any employees who work from home to ensure that they “not be subjected to reduced health and safety standards at home.” Alternatively, they should consider developing a Work from Home Policy that sets out responsibilities.

Private residences not excluded in B.C.
Section 3.5 of British Columbia’s Occupational Health and Safety Regulation (OHSR) provides: “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.”

The OHSR also stipulates 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. There is no exclusion in the OHSR or the WCA of persons engaged in work in a private residence. Given the broad definition of “workplace” under the WCA, a private residence may, in certain circumstances, fall within that definition.

The OHSR also addresses workers assigned to “work alone or in isolation” 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.” The OHSR imposes additional obligations on employers with regard to workers who work alone or in isolation, such as 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 or in a remote location, these requirements may apply. 

At minimum, employers in B.C. should prepare a health and safety policy for working from home that 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. This would fulfil the employer’s obligation to regularly inspect the employee’s workplace. A Work from Home Policy should also include protocols for contacting the employer and evacuating the home to a safe location in case of emergency, how to report work-related incidents or injuries, how education and training will be addressed and ergonomic considerations.

The Government of British Columbia’s web page, 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 B.C. Public Service employees, although it is a helpful template for employers to work from to develop their own policies.

Employees and employers in all Canadian jurisdictions 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 to ensure that these employees should “not be subjected to reduced health and safety standards at home.” 

Inspection obligations limited: Supreme Court of Canada
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 — one of the last decisions of the Supreme Court of Canada 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.

Although statutes in other Canadian jurisdictions may use different language when referring to the duty of employers to inspect workplaces, the Supreme Court’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 OHS legislation in the jurisdictions in which they operate to determine whether they explicitly exclude 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 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 or 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.

For more information, see:

  • Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 (S.C.C.).

 

Rhonda B. Levy is a knowledge management counsel for Littler LLP in Canada, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or [email protected] Monty Verlint is a partner with Littler LLP in Toronto, practising in all areas of labour and employment law. He can be reached at (647) 256-4506 or [email protected] Kate Bresner is an associate with Littler LLP in Toronto practising labour and employment law. She can be reached at (647) 256-4523 or [email protected]

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