Post-pandemic: The issues of working from home and the need for a related policy

In response to the COVID-19 pandemic, teleworking was not only favoured, but mandatory for a large part of the Quebec workforce. Many surveys conducted since then, including the most recent ones, have led to the following conclusion: moving forward, most Quebecers would like to work more from home. As a result, teleworking is here to stay and Quebec employers need to provide a framework for teleworking to protect themselves from the pitfalls and headaches such an arrangement can sometimes represent. 

In addition, it’s a safe bet that to retain their workforces and be attractive in the Quebec labour market context, Quebec employers will inevitably have to embrace this new teleworking reality at some point. The following is a retrospective of the various issues raised by the sudden emergence of teleworking in Quebec and an overview of best practices to adopt in this area.

Teleworking as an employment condition

Teleworking is not a vested right for employees unless employers have made a specific contractual commitment to this arrangement. It is a working condition like any other. The exceptional situation of the pandemic allowed its unilateral imposition to be justified. However, once public authorities’ recommendations have been lifted and any health and safety issues have dissipated, employers will be able to require, if necessary, a return to “normal,” that is, that the existing working conditions under the employment contract apply, provided that their management rights are exercised reasonably. For most employees, this will possibly mean returning to the workplace. For those in favour of offering their employees a teleworking option, a teleworking policy to govern this practice should be implemented.

Teleworking and the fundamental rights of Quebec employees

In a post-pandemic context in which employers want to impose teleworking on their current employees, in certain circumstances, employers will need to obtain employees’ consent. Working from home may implicate, among other things, employees’ rights to privacy and sanctity of the home. However, teleworking will be easier to impose at the time of future hirings where this working arrangement could be considered a mandatory working condition in the employment offer.

Where teleworking takes place

Teleworking theoretically allows employees to carry out their work from the location of their choice. Can employers require their employees to work from a specific location or prevent them from working outside the province or the country? It is quite possible for employers to limit the place where teleworking can be carried out, particularly for tax reasons, or to protect confidential information. 

Monitoring teleworking employees 

As employees are no longer physically on work premises, employers must find solutions to effectively manage work performance. Can they therefore set up certain remote monitoring methods? Electronic monitoring, while possible, must be consistent with employers’ obligation to provide fair and reasonable working conditions. 

For example, constant and continuous technological monitoring of employees is certainly an unreasonable working condition. Furthermore, employers must also weigh employees’ expectation of privacy while at home, which is necessarily higher than it is when employees are at work. Barring exceptional circumstances, employers cannot afford to make unscheduled and unauthorized visits to employees’ homes.

Health and safety in a teleworking context 

Employees suffering work-related accidents can be eligible to file a claim or receive compensation even if the injury did not occur on the employer’s premises. In the context of teleworking, there is uncertainty, partly due to the lack of effective monitoring of employee work methods and the absence of witnesses in the event of an injury. 

Although employers’ obligations under the Act respecting occupational health and safety do not specifically address teleworking, employers must, at the very least, ensure that their work methods are adequate. Employers must continue to take the necessary steps to identity and eliminate health hazards, including those likely to arise from the isolation their employees are undergoing while working remotely.

Takeaway

In light of the foregoing, it is clearly in employers’ best interest to agree in writing to the terms and conditions of telework, therefore providing a framework and avoiding any grey areas not covered by Quebec’s main labour laws. While it is possible that the legislator will sooner rather than later amend some of the existing legislation to reflect our new and widespread work reality, in the meantime, forward-thinking employers should implement a telework policy and agree on arrangements with their employees, which should cover, other than the items listed above, work schedules, overtime and confidential information protection, if necessary. Obviously, the company’s values, needs and reality will dictate the applicable terms. Our team is available to assist you in drafting and updating your employment contracts, policies and collective agreements in order to cover teleworking, answer your questions or advise you on this topic.

The author wishes to thank Florence Picard, articling student, for her assistance in preparing this legal update.