The COVID-19 pandemic has forced employers to require many employees to work from home. To assist employers in updating and implementing these measures, we recommend the following best practices.
- Establish and Maintain the Right to Impose Work-From-Home (“WFH”) When Necessary. To-date, most WFH policies and procedures (“WFH policies”) establish WFH as an employee privilege that can be exercised by the employee, within limits, subject to business needs. However, the pandemic has rendered many employers with no other option but to require certain employees to WFH. So, employers should review their employment agreements, collective agreements and WFH policies to ensure their ability to require employees to WFH is clear and not unduly restricted. If significant changes to existing WFH policies are necessary, employers should consider the possibility of constructive dismissal claims (for non-union employees) and grievances (for union employees), with regard to the unique circumstances of the pandemic which give rise to extraordinary legal considerations.
- Consider the Options for Each Employee. The pandemic will likely result in a recession, and the duration of government-imposed restrictions on business activity is currently unknown. Before implementing or adjusting WFH policies, employers should carefully consider whether WFH actually makes sense for each individual position in both the short term and the long term. Alternatives such as temporary layoffs, workforce reductions and restructuring should be considered, and updated legal advice should be obtained before proceeding with these options.
- Protect Intellectual Property & Maintain Privacy and Security. WFH policies should require employees to protect confidential information from inadvertent disclosure while working from home. Employers should set clear expectations, outlining particular steps employees are required to follow to protect confidential information. In defining “confidential information”, employers should include confidential and proprietary information to protect the business’s intellectual property, as well as customer, client and personal information to preserve business relationships and maintain compliance with privacy laws. Finally, and perhaps most importantly, employers should work with information technology professionals to ensure that the technology relied upon to facilitate WFH arrangements is up-to-date and secure, and can support the increase in usage that will result from a sudden increase in employees working from home.
- Prepare for Unique Human Rights Issues. There are two categories of human rights issues to consider. First, employers must not discriminate against employees on the basis of grounds protected under local human rights legislation. This means, for example, that employers must not implement protocols, or make discretionary decisions, that unjustifiably deny WFH options to employees who provide care to their elders or children who are now at home from school. Secondly, as always, employees who have a disability for the purposes of human rights legislation must be accommodated to the point of undue hardship. For example, employees who contract COVID-19 must be provided with time away from work to recover from the illness, followed by a period during which the employee should WFH to prevent further transmission.
- Consider Occupational Health & Safety. Employers should take every precaution reasonable in the circumstances to protect their employees in the course of their employment. For some employees, additional measures will be necessary to preserve occupational health and safety while working from home. For example, during the pandemic, employees who are working from home should not be required to meet with clients or customers in person if it is unnecessary to do so. Also, to ensure workers’ compensation requirements are met, WFH policies should require employees to immediately report work-related illnesses or injuries to the employer.
- Comply with Local Employment Standards. Employment standards legislation continues to apply during the pandemic, and usually provides for exceptions during emergencies. For example, hours of work and overtime requirements are clearly established in all Canadian jurisdictions, but some jurisdictions permit employers to require additional hours of work to “deal with an emergency” or to ensure essential services continue during unforeseen circumstances. In any event, employers must ensure they have a system for tracking and monitoring hours of work while employees are working from home. This may be accomplished by tracking remote system login / logout times, or by requiring employees to record and submit time sheets.
- Identify Acceptable WFH Locations. It may also be necessary to establish protocols for employees to follow when speaking with customers and clients by telephone or videoconference. For example, employees should continue to respect confidentiality by speaking with customers and/or clients in a private room, and should respect company dress codes, if any, when videoconferencing.
- Speak with Insurers About the Impact on Coverage. Some insurance policies do not cover liabilities that arise while employees are working from home. Employers should review their insurance policies, and consider speaking with their insurers, to ensure coverage is adequate, particularly during the pandemic when working from home will be prevalent.
- Review / Update the Work from Home Policy. Employers should consider creating and/or updating their WFH policies in light of the pandemic. At a minimum, all WFH policies should address the following questions:
- Who is eligible to work from home and when it is appropriate to do so?
- How will hours of work and overtime be monitored and appropriately compensated?
- How will performance, productivity and quality of work be monitored and managed?
- How will occupational health and safety policies and procedures apply to employees while they are working remotely?
- What equipment will be required to work from home (g. computer, mobile phone) and who will be supplying it?
WFH policies should also establish and/or confirm:
- A pre-approval process and/or a scheduling process for working from home if necessary.
- Remote access procedures, and standards of acceptable use of the remote access system.
- Expense reporting for expenses resulting from working at home (e.g. internet access costs).
- Employee responsibilities regarding passwords, system protections and data security.
- The potential consequences if an employee violates the policy.
- Subject to terms of individual employment contracts or collective agreements, the employer retains discretion to change or discontinue work from home arrangements at any time.
Employers should require employees to confirm and acknowledge their understanding of their WFH policy. This can be done, for example, by requiring employees to provide an electronic acknowledgement confirming they have read and understood the WFH policy.
Many thanks to Adam Burt for his assistance with this article.