According to Statistics Canada, in 2023 20% of Canadian workers reported that they “usually” work from home. This is a significant jump from the pre-pandemic numbers, with only 7% of workers reporting that they usually worked from home in 2016.
Many employers now are trying to figure out how to move forward with working arrangements for their employees in the post-pandemic world- fully remote? Fully in-person? A hybrid of both?
If your business has employees working remotely, whether all the time or some of the time, there are certain employment law issues you should consider as remote work becomes a more permanent and prevalent part of the employment landscape.
- Minimum Employment Standards and Record-Keeping Obligations
Under the Ontario Employment Standards Act (“ESA”), employees are guaranteed minimum rights, regardless of whether they perform their work remotely or in person. These minimum rights include overtime pay, minimum wage, and rest periods (subject to certain exceptions). Hours of work and when employees take breaks are more difficult to monitor in remote work settings, and the line between when an employee is performing work and when they are “off” can easily become blurred when working from home.
Employers should be mindful that obligations like overtime pay still apply if employees perform their work remotely, and employers are required to keep records of employees’ hours of work. This can be more difficult in a remote work environment. Employers should have strong procedures and policies in place to ensure they are adhering to all their obligations under the ESA, and not opening themselves up to liability for unpaid overtime or other minimum standards.
- Occupational Health and Safety
Employers still must provide a safe working environment for their employees, even when they are working from home. Employers can provide health and safety training, checklists for safe and ergonomic workstations and procedures for reporting work-related injuries when working remotely.
- Accessibility and Accommodation Requirements
When an employee is working remotely, it may be more difficult for employers to identify their accommodation needs or to see when they are struggling with potential mental health issues, disabilities or family obligations. Employers should ensure that remote workers are having regular check-ins regarding their equipment, workloads, hours of work, and capacity, to mitigate any potential unaddressed accessibility and accommodation issues.
As we’ve written about on the blog previously, an employee performing remote work is governed by the laws of their local jurisdiction, meaning where they are working, not where the employer may be headquartered. Employment standards, payroll obligations, taxes, workers’ compensation schemes, privacy legislation and health and safety requirements may be different if an employee is working out of province (or out of the country). Employers should consult an employment lawyer (and probably an accountant!) if they are considering hiring a remote worker who lives in another jurisdiction.
- Updating Employment Contracts and Policies
With all of the considerations listed above, employers should review their employment contracts and workplace policies to ensure that whatever their remote working arrangement is, it is adequately addressed and their interests protected.
Implementing a Remote Work Policy removes any potential ambiguity for employees regarding expectations for performing remote work. This could include issues around data security and privacy, work equipment, expense reimbursement policies and expected work hours. Employment contracts can be updated to include a provision dealing with “location of work” and a right to recall employees to the office with notice if employers wish to potentially be able to bring employees back to in-person work in the future.
Have questions about your company’s remote work and/or hybrid setup? Get in touch for a consultation.