Remote Work: Three Legal Issues for Employers to Consider

Many companies are starting to adopt remote work arrangements as part of a work culture focusing on work product rather than work process. This can bring a lot of benefits to an organization, like expanding, providing flexibility to its workers, and saving on overhead expenses that usually accompany a location-dependent workforce. But employing remote workers also comes with its own set of legal implications that remote leaders need to consider. Each of these legal issues could be a potential liability for your company.

Now…what are some issues that remote leaders need to consider? We’ve picked the following three issues to discuss today: 

i. Ensure that the remote workspace is safe

Working from home and remote work arrangements present unique safety challenges—and employers must ensure they are complying with workplace rules even for employees who don’t work onsite.  Subject to limited exceptions, employers need to remember that the Occupational Health and Safety Act applies to employees who work from home.

Best practices include:

  • Require that the employee create a dedicated work area at home and provide evidence (i.e. photographs) that the area has been set up according to the employer’s specifications.
  • Create general statements about employees’ responsibilities to ensure their work space is safe
  • Periodically follow up to ensure compliance
  • Employers should very clearly instruct employees to immediately report any work-related illness or injury, especially when working from home.

ii. Understand that you have an obligation to accommodate 

Currently, there are no provincial or territorial laws in Canada that provide employees with an express right to request flexible work arrangements. However, these requests may be made under human rights legislation provided it is based on an enumerated ground. Accommodation requests include working from home is the most effective way to address a medical or family status issues.

In these events, an employer can request evidence that the employee needs to work from home in order to receive accommodation. An employer will need to assess elements, such as whether there is anything that would preclude the employee from working remotely, as well as whether it would cause undue hardship for the employer.

iii. Beware of constructive dismissal claims​

Sometimes where an employee is given the ability to work from home, removal of that privilege during the term of employment may trigger constructive dismissal. The key factor to determining whether removal of work from home privileges will constitute constructive dismissal is whether working from home constituted a fundamental term of employment. Some factors that may indicate whether working from home is a fundamental term of employment include: the length the employee had the option to work from home, whether working from home a term of the employment agreement, and what is the basis for altering the work from home arrangement.

If you would like to speak with a lawyer, schedule an initial consultation at Emerge Law. To speak with an employment lawyer in confidence, contact us at 416-238-5527 today!  

The content of this article is written for general information purposes only, and does not constitute specific legal advice. This article should not be used as a substitute for competent legal advice from a licensed lawyer.