Increased numbers of employees working from home raise questions about health and safety liability
The COVID-19 pandemic has changed the landscape of work in many ways. One of the most prominent changes in the “new normal” is the large proportion of people working from home on a full-time basis. Having so many employees working remotely has forced employers to change the way they operate while trying to keep some semblance of a cohesive workplace and culture as well as ensuring employees have the tools and support they need to do their jobs.
How much responsibility do employers have for the health and safety of employees who are working remotely? Occupational health and safety legislation across the country puts a legal responsibility on employers to take all reasonable measures to ensure employees are safe while working. This doesn’t just apply to the employer’s primary workplace — be it an office or worksite — but any other location where the employee is carrying out work during work hours.
Obviously, employers don’t have any control over physical locations they don’t own or operate, so in those circumstances, reasonable safety measures could involve equipment, clothing, or communications devices that would reduce the risk of harm when the employee is out in the field. The key element is what is “reasonable” — any measures that are possible for the employer to implement that it can afford to do are likely going to be considered reasonable by a court of law.
However, things are a little different if the employee is working from home. Under normal circumstances, an employer has no business involving itself in an employee’s home life or residence. But if an employee is doing their work at home, there could be some responsibility on the employer’s part to ensure that the employee is safe during work hours.
For example, the B.C. Workers Compensation Act defines a “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.” This seemingly includes employee residences when they’re working — or at least doesn’t specifically exclude them.
In Ontario, however, things are a little different. The province’s Occupational Health and Safety Act specifically excludes “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” from its definition of a workplace. Basically, it means employers don’t have responsibility for safety when an employee is working from home.
The Supreme Court of Canada shared this sentiment in a 2019 decision that found a federally regulated employer only had an obligation to conduct health and safety inspections of workplaces it could control — and obviously, employers have little to no control over employees’ residences: see Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67.
But regardless of whether the law specifically includes or excludes home offices from health and safety rules, there can be an obligation to ensure employee safety. The Canadian Centre for Occupational Health and Safety (CCOHS) offers guidelines on telework and telecommuting that highlight health and safety issues with working from home and recommend that employers and employees have an agreement over who has responsibility over certain safety issues. While this isn’t a legal requirement in itself, it could be seen as reasonable measures an employer should take to ensure an employee’s safety — particularly in a jurisdiction like B.C. where the home office is considered the workplace.
Employers are also likely going to have some liability if an employee sustains an injury directly related to the equipment the employer supplies, whether it be electronics or even a work chair supplied by the employer.
When employees are working outside of the employer’s physical workplace, it’s difficult for the employer to exercise much control or influence over the condition in which employees are working. But health and safety should always be a priority — both for the sake of employee health and the bottom line that can be affected by losing employees to illness or injury — and having employees work from home doesn’t absolve employers of all safety responsibility.