Liability and the hybrid workplace

Employers have legal obligations in the workplace, no matter where that might be

Liability and the hybrid workplace

It’s the era of the hybrid workplace. At least, that’s what it seems as we pass the year-and-a-half mark of the global pandemic. Countless workers have been working from home for the duration and, as many employers begin welcoming employees back to their physical workspaces, it’s becoming clear that remote work will remain a significant element of many workplaces going forward.

But while workers in different locations may be physically separate, they are still one workforce for which the employer has the usual legal obligations.

In fact, more than eight in 10 Canadian employers say they will consider some sort of permanent work-from-home policy, according to a recent report. This will likely please most workers, as a survey last spring found that only 20 per cent of Canadians want to go back to the office once business assumes some sort of normalcy and 40 per cent want to work a hybrid model.

Many businesses with employees who can work remotely may not be as hesitant as they once were, as the pandemic forced them to figure out how to do it successfully and, by now, things are likely going somewhat smoothly. However, working from home isn’t perfect and employers should keep in mind the challenges and liabilities that come with the hybrid workplace and remote workers.

It’s always been a concern that working from home can blur the line between home life and work life, as well as when the workday starts and ends. While not having to commute can help save workers time, the commute can also be a way of separating work hours from off-duty hours. Nine in 10 Canadian workers say they are accomplishing as much work or more per hour at home as they did when they were working in the office, but more than one-third say they work longer hours, according to Statistics Canada.

Another survey from late in 2020 found that more than half of remote workers were working on weekends and one-third were working more than eight hours a day.

Employees working longer hours not only face the risk of increased stress and burnout — which cause their own challenges for employers — but they can increase legal liability for employers when it comes to employment standards. There have been numerous instances of employers finding themselves responsible for paying employees for overtime that was worked without their knowledge. While many employers stipulate that overtime must be authorized, that doesn’t necessarily get them out of paying it.

Employment standards legislation is pretty black and white — if an employee performs work that benefits the employer beyond the stipulated regular hours, then overtime pay is owed. In particular, it’s been established that if an employee is given work that can’t be reasonably completed within normal hours, then overtime may be reasonably assumed.

Accurate recordkeeping is important when it comes to overtime, as courts have found in favour of employees who present their own records of overtime hours where the employer has none. Employees may have more time for themselves by working from home, but if they do work outside of normal hours then it’s overtime.

Health and safety is another issue that employers should keep in mind with remote workers. An employee’s home is usually not considered a workplace, but if an employee is working from home in a specific space, the employer may have a responsibility to ensure, as much as is reasonably possible, they are safe during working hours in that space. A work-related injury while working from home can be eligible for workers’ compensation and could have consequences under health and safety legislation.

Additionally, when employees are using company equipment in their own home, there can be issues with privacy. Video meetings and phone calls have been a staple for many remote workers through the pandemic, and they will continue to be an important element in hybrid workplaces. But webcams and microphones owned by the employer and connected to its network raise the possibility of elements of employees’ personal lives being put on display to co-workers or management. Employers would be wise to be careful of any kind of monitoring software on their equipment — and make employees aware of it — and encourage employees to use tools such as background blurring on video calls and microphone muting.

With the liability that remote workers can bring, it’s probably a good idea for employers moving forward with a hybrid workplace to establish clear policies or even remote work agreements. This can clarify a lot of areas and outline expectations and responsibilities.

The hybrid workplace seems to be the way of both the present and the near future. During working hours, employees at home and at the office are both in the workplace and employers must follow employment standards and health and safety rules, just as if everyone was one place.

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