Requests to work from home and WCB liability

Are we responsible for providing a safe work-at-home environment?

Question: As a software development company, we constantly have requests for employees to work at home. Is the company responsible for setting up an ergonomic environment for the employee at their home office? Also what if they fall down the stairs during their work day at home or have some other such injury — is it a WCB claim? Are we open to liability for not providing them with a safe work environment or not allowing them to work at home in an unsafe environment? Do we have to inspect their home setup before allowing offsite work?

Answer: The specific provisions of workers’ compensation legislation vary from province to province. However, the common principle in all workers’ compensation legislation is that workers who are injured in the course of their duties are to be compensated for their work-related illnesses or injuries. This applies whether the illness or injury takes place at the employer’s designated workplace or at any other agreed location, including the employee’s home.

For example, under the Canada Labour Code, “workplace” is defined as any place where an employee is engaged in work for the employer and this can include an employee’s home. Just as when an employee is injured in the employer’s workplace, if an employee is injured while working at home, the employee must bring any accident or injury to the immediate attention of her supervisor.

Under both provincial and federal workers’ compensation legislation, the employer has a general duty to ensure the safety and health of employees is protected. With respect to employees who work from home, the employer is required to take whatever action is required to demonstrate due diligence. In other words, the employer is responsible for ensuring the employee knows and understands what is involved in working from home and is given guidance on the practical considerations of working from home, where it is considered appropriate or necessary.

This should include giving guidance on how to establish a safe and ergonomic working environment and adequacy of work station and facilities (such as keyboard placement and wrist support, type of chair and chair adjustments, proper lighting and availability of first aid supplies).

The Canada Labour Code, as well as most provincial workers’ compensation statutes in Canada, lists a number of specific employer duties in relation to workplace health and safety. However, these specific duties only apply to workplaces controlled by the employer. Employees’ homes are not workplaces controlled by the employer. Similarly, the powers of safety and health committees and those of labour safety officers only apply to workplaces controlled by the employer.

Employees’ duties respecting safe work practices are also outlined under provincial and federal legislation in Canada. Unlike an employer’s specific duties, an employee’s duties apply to all employees while at work and are not restricted to workplaces controlled by the employer. As such, employees are responsible for ensuring their home work environment is adequately equipped from a health and safety point of view.

When working from home is a voluntary flexible work option which is originated by the employee, there is no requirement under provincial or federal workers’ compensation legislation for the employer to pay to have an assessment of an employee’s home work environment to ensure that it complies with occupational health and safety standards.

Again, this is because the employer does not control a home-based workplace. Therefore if an employee asks for an assessment of her home workplace, it is up to the discretion of the employer to determine if or how an assessment will be carried out.

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected]

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