November 18, 2020

Employers need policy to deal with remote workers

When the coronavirus forced a multitude of employees to work from home it may have been assumed that it would be a temporary change. But as we struggle through a second wave, it has become clear that it may be quite some time before we return to a sense of normalcy, if at all.

In a press conference last week, Toronto’s Medical Officer of Health Dr. Eileen de Villa said the daily case count in that city is one that cannot be “ignored” or “rationalized.”

“I want to warn you in the plainest possible terms, COVID-19 is out there at levels that we have not seen before,” de Villa said as she announced Toronto is moving to the red zone of Ontario’s COVID-19 tiered shutdown system.

While setting out guidelines for such establishments as bars, restaurants and gyms, Toronto Public Health also suggested that working from home should be promoted wherever possible.

Forced Remedy

Although it may have started as a forced remedy, a number of businesses have embraced the remote option. Even after it was safe to return to the office, many employers and employees chose the home office option.  

According to Benefits Canada, about five million Canadians were working from home at the beginning of the shutdown, with that number dipping to 4.2 million in September. 

The sudden pandemic shutdown caught many off guard. The employment landscape changed virtually overnight as businesses and workers scrambled to meet the new realities.

Now, with the chance that more employees will be returning to the remote model, it is time to ensure your business is doing all it can to comply with the workplace regulations.

It starts with having remote work guidelines in place. Your policy should address but is not limited to:

Your right to impose remote working as set out by your business needs and government regulation.

Your right to recall workers to the workplace.

Expectations about availability for work.

Compensation for expenses such as phone and internet required to fulfil duties of the job.

Provisions emphasizing security and confidentiality of company information.

Human rights and health and safety guidelines.

When it comes to health and safety there are different considerations at play for remote workers. Especially issues dealing with mental health. Employees can easily become isolated and overworked if they are working from home. 

Feelings of Isolation

According to Workplace Safety & Prevention Services, some workers can have feelings of isolation when removed from colleagues. They offer resources to help employers and workers make remote work a productive experience.

Employers in Ontario are regulated by the Occupational Health and Safety Act. The standard is “every precaution reasonable in the circumstances for the protection of a worker.” The fact that the employee is not in the workplace and the employer doesn’t have control over the home setting is going to affect what the employer is expected to do. It is not going to be the same standard that’s applied in the office, but firms do have to turn their mind to it and reflect it in some type of policy.

One important health and safety consideration is cyberbullying and harassment. People are communicating more by email and text (particularly WhatsApp)l or videoconferencing. These electronic communication forums are not immune to inappropriate behaviour, and may even be conducive to it. Companies should adapt their harassment policies to account for cyberbullying.

The line between the office and home has become blurred and expectations are changing. Employers must be flexible. For example, people are not that bothered anymore about hearing children or dogs in the background during a work call. It would be unreasonable for employers to take a hard line on that.

Remotely Monitor Productivity

Companies should also be careful not to overstep their authority when supervising remote workers. CBC reports that the increase in employees working from home has led to an interest in services that allow employers to remotely monitor productivity.

Many workers reasonably expect privacy in electronic communications and flexibility in their ability to complete work. If the employer is being intransigent and demanding that an employee be at the workstation or logging into the system at certain times, that may be problematic and could create a family status issue under human rights legislation if the employee has concurrent caregiving responsibilities.

Productivity is, of course, an important issue and it’s going to vary from industry to industry. For some workers, there may be no need to log in and out at predetermined intervals. Their output at the end of the day will be the best measurement of productivity. On the flip side, there may be a requirement to log in at predetermined times, if working in a technical or a customer support role. In this regard, it is incumbent for the employer to clearly communicate its expectations.

Companies need to recognize that even when employees are working from home, Employment Standards Act regulations are still in force when it comes to the definition of work, hours and overtime. 

Overtime Threshold

For example, an employee who exceeds the overtime threshold is entitled to the overtime premium whether or not the employer has authorized it. This is borne out in Fresco v. Canadian Imperial Bank of Commerce, a recent Ontario Court of Justice decision dealing with the issue of overtime that was not employer sanctioned.

Overtime policies still apply, whether a worker does their job from home or in the office. It is up to the employers to find ways to monitor and track the time the employee is working so they are not creating an additional liability.