The COVID-19 pandemic has caused many changes in the world of work. One of the most distinct is the great exodus that has occurred of employees moving from working at the business premises of the employer to their own residential homes. The purpose of this blog is to inform our readers of what legal issues can occur with respect to this new shift to remote work or work-from-home arrangements.
The Employment Standards Act
Ontario’s Employment Standards Act applies with respect to work-from-home arrangements. In fact, work-from-home employees are actually a defined term under Ontario’s Employment Standards Act. The Act defines these employees as “homeworkers” which means an individual who performs work for compensation in premises occupied by the individual primarily as residential quarters but does not include an independent contractor. Homeworkers are eligible for all the rights of employees who work at the business premises of the employer such as vacation pay, sick leave, overtime pay and notice of termination. In fact, the minimum wage is set higher for homeworkers and sits at $15.40 per hour. Minimum wage is simply the lowest amount per working hour that an employer can legally pay an employee in most jobs.
The Occupational Health and Safety Act
Ontario’s Occupational Health and Safety Act requires that employers take certain precautions in order to protect its employees. The Act further defines a “workplace” as any land, premises, location or thing at, upon, in or near which a worker works. However, the Act seemingly goes on to carve out work-from-home arrangements in section 3(1) of the Act, which sets out that the Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith. As such, Ontario’s Occupational Health and Safety Act probably does not apply to work-from-home arrangements. However, it does remain a bit unclear.
The Workplace Safety and Insurance Act
Interestingly, while Ontario’s Occupational Health and Safety Act seems to specifically carve out work-from-home arrangements, Ontario’s Workplace Safety and Insurance Act does not. In fact, this Act directly applies to work-from-home arrangements. An employee may still file a claim with the WSIB even if that employee works from home as long as they were injured during the course of doing their job. Further, the WSIB sets out that it is still the employer’s responsibility to look out for the health and safety of their employees regardless of whether or not the employee is under a work-from-home arrangement and fully expects the employer to report any workplace injuries or illnesses to the WISB.
The Human Rights Code
Ontario’s Human Rights Code protects employees from discrimination regardless of where their workplace is located. To remind our readers, employers have a duty to accommodate employees to the point of undue hardship. With respect to the duty to accommodate within the work-from-home context there may be an increase in certain types of family status accommodation requests that may be unique to the COVID-19 pandemic. For instance, there may be an increase in concerns about the flexibility of working hours if the employee also has children at home because of school closures or childcare issues because of the COVID-19 pandemic.
There are going to be two issues here. The first is that employers are going to have concerns relating to employee productivity, which will cause them to try to implement certain technological systems to monitor their employees during the course of the workday. In response, employees will have legitimate concerns about their own privacy. However, whether or not they can do anything about it will remain to be seen.
Remote-work or work-from-home arrangements have seen a steady increase even in pre-pandemic times and technological advances have resulted in work facilitation opportunities that were unthinkable in the past. With the arrival of COVID-19, work-from-home arrangements have effectively become the norm in many industries, at least for now. In consequence, the definition of what constitutes a “workplace” will continue to expand and attract to it commensurate rights and obligations both from employers and employees alike.