Should you have a remote work policy?

Many workplaces have changed dramatically as a result of the COVID-19 pandemic. One significant change has been the increase in remote, or hybrid, work arrangements. At the start of the pandemic, many employees were sent home to work out of necessity, whether as a result of lockdowns or out of concern for health and safety.

Most employers did not have the opportunity to prepare a remote work policy, or even consider whether one was necessary. Now that the dust has settled and it is clear that remote/hybrid work arrangements are here to stay, it is time for employers to take another look at this issue.

A remote work policy establishes the ground rules for remote/hybrid work arrangements in the workplace. It can cover anything to do with the remote work arrangement, from who qualifies to how either party can terminate the arrangement.

Why do I need a remote work policy?

To avoid issues arising as a result of employer and employee expectations not being aligned at the outset, all employers who offer remote/hybrid work arrangements should implement a remote work policy. Consider the following questions from an employee who has been approved for a remote work arrangement:

• “Can I work out of my vacation home in Spain?”
• “Who will provide me with my home office equipment?”
• “What if I am injured while working at home?” 

All of these questions can be addressed ahead of time by establishing a clear remote work policy.

What should be included in the policy?

Employers have a lot of flexibility in terms of what to include in a remote work policy. At a minimum, this policy should address the following:

Conditions or qualifications: Which employees will be eligible for remote/hybrid work arrangements? For example, an employer may determine that remote/hybrid work arrangements are available only for certain roles or after employees have accrued a certain amount of service. As long as the conditions are not based on discriminatory grounds, employers have a lot of discretion in determining who is eligible for remote/hybrid work arrangements and who is not.

Approval of remote/hybrid work arrangements: Employers will also want to establish the process by which employees can begin working remotely. For example, employees could be required to submit an application for remote work which then must be reviewed and approved by the employee's manager before the remote work arrangement can commence.

In addition to having a clear policy, employers may also consider asking an employee to enter into a remote work agreement. While the purpose of the policy is to set out general terms applicable to all staff, a remote work agreement can establish the specific terms of a remote work arrangement with the individual employee (such as that employee's remote work schedule, equipment requirements, etc.).

Remote work schedules: Employers can also establish what types of remote work arrangements are available in the workplace (such as hybrid or fully remote). For each employer, the definition of "hybrid" may also change. For one employer, a hybrid work arrangement may include three days in the office, and two at home per week. For another, it may include one week each month worked from the office.

It is also important to set expectations with respect to work schedules. Employers may allow more flexibility on work-from-home days. In this case, it may be important for an employer to establish the "core" hours during which they will expect employees to be available, regardless of where they are working. Alternatively, if an employee's work schedule will remain the same whether they are in the office or at home, employers can clearly establish this expectation in the remote work policy.

Home office space and equipment: Employers who allow employees to work remotely will want to consider where the employee will be permitted to work and what equipment is needed to facilitate the remote work arrangement. In some cases, an employer may be comfortable with an employee working from anywhere, including their home, a coffee shop, or their cottage. However, most employers will want to establish some limitations on where an employee can work. For example, an employer may require that an employee have a private work space away from others to ensure confidentiality.

In addition, where an employee works can have legal and tax consequences for an employer. Often the employment and tax laws that govern will depend on which jurisdiction the employee is working in. As a result, at a minimum employers will want to ensure that their remote work policy requires employees to advise if they will be working out of their home province. 

The employer should also consider who will provide what equipment. For example, an employer may provide employees with their computer and cell phone, but not a desk or other furniture needed for their home office. An employer might also offer reimbursement of some expenses, such as office supplies or Internet. These can all be addressed within a remote work policy.

Health and safety: When an employee is working remotely, the employer does not maintain control over their workspace. As a result, it is important for employers to set clear expectations with respect to health and safety. This could include advising employees that they are still expected to comply with the employer's health and safety policy even when working offsite, or reminding them of the importance of taking regular breaks while working at home. Employers will also want to ensure that employees know what to do if they are injured while working at home.

Terminating the remote work arrangement: As an employer, it is crucial to ensure you retain the flexibility to terminate a remote work arrangement if needed. There are many reasons why remote work arrangements may fail — the employee's role may evolve to require attendance at the office, the employee's performance may decline, or the employer may simply decide to cease offering remote work options. A remote work policy can establish the process for terminating a remote work arrangement, which typically involves the employer or employee providing written notice of same.

Without a clear termination process, employers risk an approved remote work arrangement becoming a permanent change to the terms and conditions of an employee's employment. In this case, an employer who attempts to recall an employee to in-person work may be faced with a claim of constructive dismissal.

Key takeaways

Although a remote work policy is not something that employers are legally obligated to have, any employer who offers remote/hybrid work arrangements should consider implementing one. There are many issues for an employer to consider when allowing employees to work offsite.

Addressing these issues ahead of time can help to mitigate against confusion and conflict down the road.