Not turning a blind eye: addressing domestic violence, telework, and pandemic-related employment considerations in Canada

Rates of domestic violence have increased by 20 to 30 percent across Canada during the COVID-19 pandemic, coinciding with the shift of the workplace from office to home.  While employers have a number of legal obligations regarding workplace health and safety and workplace domestic violence, the intersection of these obligations for teleworking employees has received little attention. This legal update explores what lies at that intersection in five major Canadian jurisdictions: Ontario, Quebec, British Columbia, Alberta, and federal.

It should be noted that certain non-legal expert-recommended options for addressing domestic violence in the employment context are discussed in this piece. Those options stem from research by and experience from the Centre for Research & Education on Violence Against Women & Children and should be construed as such.

What is domestic violence?

Domestic violence is an abuse of power that can manifest physically, sexually, psychologically, and/or emotionally by an intimate partner or family member and can include, among other things:

• forced confinement;
• deprivation of the necessaries of life;
• intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property;
• unreasonable restrictions on, or prevention of, financial or personal autonomy;
• stalking or following; and
• intentional damage to property.

Although “domestic violence” is the most commonly used term in employment-related legislation across Canada, some jurisdictions use the term “family violence” or “interpersonal violence” instead. Domestic violence can affect anyone, regardless of their sex, gender, gender identity or expression, sexual orientation, age, race, economic status, or any other characteristic.

A survey of 8,000 Canadians conducted in 2014 found that over a third of workers have experienced domestic violence in their lifetime, over half of whom have experienced violence at or near the workplace and 82% of whom have reported domestic violence negatively affecting their work performance. That equates to over 25% of every workforce being negatively affected by domestic violence, prior to the pandemic.

As COVID-19 cases surged across Canada, so too did domestic violence rates. Domestic violence reports increased by 20 to 30 percent and crisis calls by 400 percent in some Canadian regions. A Statistics Canada survey released in early April 2020 reported one in 10 women saying they are “very or extremely” concerned about the possibility of violence in their homes due to the stress of confinement alone.  Certain experts attribute these numbers to, among other things, the pressure-cooker environment created by increased economic insecurity, social isolation, and an inability to leave abusive situations due to lockdowns.

And so, as employers shifted the workplace from the office to employees’ homes, the mitigation of one danger might have inadvertently exacerbated another. Unquestionably, there are some teleworking employees experiencing domestic violence right now. But what should employers do about it?

Legal landscape for employers in Canada

Possible answers to this question lie at the intersection of teleworking and workplace domestic violence laws.  Many Canadian jurisdictions have occupational health and safety legislation providing for the safety of employees working from home.  Most jurisdictions also have legislation providing for the protection of workers from domestic violence in the workplace.  From this, it is possible  to infer, in certain circumstances, an obligation on employers to protect workers from domestic violence when the home is the workplace, but the absence of jurisprudence on this subject leaves the extent of employer obligations open to debate. To date, no jurisdiction has implemented specific legal requirements in this regard, but there are some considerations that merit discussion. In this section, we discuss:

• various laws on workplace domestic violence;
• how these laws relate to telework (i.e. working remotely); and
• non-legal options that employers may implement to support employees who may be experiencing domestic violence.

Domestic violence laws

Employers bear legal obligations for workplace domestic violence primarily under four types of legislation: (1) employment standards, (2) occupational health and safety, (3) human rights, and (4) privacy. These four areas of the law are not exhaustive, and employers should remain cognizant of other statutory obligations that may be engaged by workplace domestic violence.

• Employment Standards: Employees across the five jurisdictions are entitled under employment standards legislation to take domestic violence leave in order to, among other things, seek medical help, counselling, legal or law enforcement assistance, or relocate from an abusive home.  British Columbia, Ontario, Quebec, and the federal jurisdiction entitle employees to be paid for part of their leaves.

• Occupational Health and Safety: In Ontario, Alberta, British Columbia, and the federal jurisdiction, the occupational health and safety (OHS) laws recognize domestic violence in the workplace as a form of workplace violence. Generally speaking, OHS legislation requires employers to take precautions to protect workers from workplace violence through policy development and training and to respond when they become aware, or ought to be aware, of the likelihood of domestic violence exposing an employee to injury. The extent of those precautions are worded differently across the different jurisdictions, as follows:
  
  
  • “the prescribed steps to prevent and protect against” in the federal jurisdiction.  
  • “every precaution reasonable in the circumstances” in Ontario.
  • “as far as reasonable practicable” in Alberta.
  • “all reasonable steps” in British Columbia. 
  • In Quebec, the Act respecting occupational health and safety (Quebec AOHS) does not specifically recognize domestic violence in the workplace as a form of workplace violence; however, employers bear a general obligation under the Quebec AOHS to “protect the health and ensure the safety and physical well-being of the workers.”
    
    Furthermore, the Quebec Act respecting labour standards provides that employers “must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.” The employer must also “adopt and make available […] a psychological harassment prevention and complaint processing policy.” Psychological harassment is defined as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee” and also includes “verbal comments, actions or gestures of a sexual nature.” 
• Human Rights: Given the generally gendered nature of domestic violence and the recognized significance of intersectionality, domestic violence could theoretically and in some cases engage human rights obligations on the following protected grounds: sex, gender, marital status, family status, and disability (including mental health), among others.  Also, Quebec’s Charter of human rights and freedoms provides that “[e]very person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being.” However, there is limited jurisprudence on discrimination claims arising out of domestic violence against employees. 
• Privacy: When abuse is disclosed, employers must balance employee safety with applicable privacy laws.  The federal jurisdiction, Alberta, British Columbia, and Quebec all have privacy legislation applicable to private-sector workplaces regarding the collection, storage, distribution, and disclosure of “personal information.”  In Ontario, private sector employees enjoy protections under privacy legislation on personal health information, which has been declared substantially similar to the federal Personal Information Protection and Electronic Documents Act. In addition, Ontario employment standards and OHS laws have confidentiality provisions applicable to employers. For example, employers are required to only reveal the minimum information necessary for protecting workers, and they must have systems in place to protect the confidentiality of employee records and leaves of absence. Finally, Canadian courts have held that privacy-related issues may also be subject to tort liability, including the torts of public disclosure of private facts and intrusion upon seclusion.

Telework-related laws

Currently, there is not a unified approach to extending statutory health and safety obligations to at-home or teleworking workspaces.  Indeed, there is an ostensible divide in the approaches taken by the federal jurisdiction, Ontario, and Quebec on the one hand, and British Columbia and Alberta on the other, with the latter group imposing arguably more stringent obligations on employers. 

• Federal: While the “work place” is broadly defined by the Canada Labour Code as any “place where an employee is engaged in work for the employee’s employer,” the Supreme Court of Canada ruled in a 2019 decision that an employer’s health and safety obligations are not limitless and cannot extend to unreasonable circumstances. In Canada Post Corp. v. Canadian Union of Postal Workers, the employer’s specific obligation to inspect a workplace was limited by this case to parts of the workplace over which the employer has control.  For its part, though not required by law, the Canadian Centre for Occupational Health and Safety recommends that employers create telework policies that consider health and safety protections for teleworking employees and offer the same level of safety and security as the regular workspace.
• Ontario: The Occupational Health and Safety Act defines a “workplace” as including any “land, premises, location or thing at, upon, in or near which a worker works” but specifically excludes “private residences.”  However, the exclusion was introduced into the legislation at a time when teleworking was uncommon, and the Hansard reports from 1978 reveal that the exclusion contemplated only domestics at the time.  As well, the case law out of the Workplace Safety and Insurance Appeals Tribunal and Ontario Labour Relations Board suggests that working at home may not preclude coverage by the legislation.  Also, the Workplace Safety and Insurance Board has confirmed that workers’ compensation benefits are available for accidents sustained at home in the course of employment.  Additional commentary on teleworking laws in Ontario can be found here.
• Quebec: The Quebec AOHS defines the “workplace” as “any place in or at which a person is required to be present out of or in the course of work, including an establishment and a construction site.” This broad definition could include a private residence in which an employee is teleworking. Indeed, Quebec’s courts have already held, in a workplace-accident context, that a domestic residence could, in some cases, be considered as a workplace.
• British Columbia: The Workers Compensation Act defines the workplace as: “any place where a worker is or is likely to be engaged in any work and includes any vessel, vehicle, or mobile equipment used by a worker in work,” extending employer obligations and workers compensation to the at-home workplace.  British Columbia’s Occupational Health and Safety Regulation also provides for the protection of workers when they are working alone or in isolation.  Employers are encouraged to have employees fill out a hazard assessment checklist or conduct a video inspection of the at-home workplace. Employers should also have a system to check in with employees with a daily roll call, whether by email or phone, and ensure that there is a procedure for following up if an employee does not respond or requires emergency assistance.
• Alberta: The Occupational Health and Safety Act defines a worksite as “a location where a worker is, or is likely to be, engaged in any occupation and includes any vehicle or mobile equipment used by a worker in an occupation.”  A “private dwelling” exclusion similar to the exclusion in the Ontario legislation was removed in 2018, thereby extending the workplace to the home for teleworking employees.  Employers in Alberta should follow the same practices of their counterparts in British Columbia, reviewed above. Of note, if an employer believes an employee has engaged in domestic violence against another in the workplace, the employer has the added obligation of taking reasonably practical steps to prevent such conduct from continuing, a responsibility that can be increasingly complicated when the employee is teleworking. 

In short, British Columbia and Alberta definitively recognize the home office as a workplace for OHS purposes.  And, the policies and jurisprudence coming out of Quebec, Ontario, and the federal jurisdiction suggest that telecommuters in those jurisdictions may, in certain cases, be entitled to OHS protections as well.  The reality that many Canadian workers have transitioned from working at the office to working at home may provide a further policy impetus to recognize a broader definition of the workplace. 

Options

In the absence of definitive statutory or judicial guidance, the intersection of the foregoing workplace domestic violence and teleworking laws remains unclear. However, there are a number of options recommended by some non-legal domestic violence experts that may help enhance the protection of teleworkers in certain cases.  Below is a summarized compilation of these options offered by the Centre for Research & Education on Violence Against Women & Children in their COVID-19 Domestic Violence Briefings.

• Talk about domestic violence.  Work toward eliminating the stigma associated with domestic violence by talking about it in workplace communications so that employees feel comfortable about coming forward. In so doing, consider acknowledging that domestic violence is a social problem, not a private problem, and assure all employees that they will not be viewed as less than professional or otherwise deficient because of a disclosure of domestic violence. In these communications, be sure to clarify that confidentiality will be protected.
• Develop a communication strategy and communicate regularly with employees to reduce isolation.  Provide employees with guidance on what to expect if they disclose violence and reassure them that they will receive employer support and job security.  Some options in this regard may include non-traditional means of communication, such as hand signals and code words for use on voice and video calls that employees can use to silently indicate a need for help while at home. This, of course, does not displace the critical role that  emergency response services, such as the police, can play should a situation arise where a threat of danger is imminent and serious.
• Share internal information and resources that already exist in the workplace related to domestic violence, such as domestic violence leaves.  It is possible that in some organizations, junior or mid-level managers may not be equipped to deal with situations of domestic violence in the physical or teleworking workplace. To address this, employers may therefore consider offering training sessions, such as online webinars, for managers and team leaders on the issue of domestic violence and how to support survivors.
• Provide external information and resources and make employees aware of ongoing services and resources in the community, such as shelters and transition houses, crisis lines, and legal clinics.
• Adapt workplace security measures to the at-home context where possible. For example, employers can establish pre-set emergency telephone numbers or panic alarms connected through employees’ mobile phones and ensure that company-established website access is inaccessible by third parties. For some employers, such measures may not always be feasible. Measures in this regard should therefore be adapted to the specific workplace, based on the employer’s resources and realities.
• Be responsive and supportive in a non-judgmental manner when employees disclose abuse.  To achieve this, employers may consider working with police and domestic violence experts to carry out threat assessments and safety plans, help employees access legal and police protection, ensure accessibility to employee assistance plans, and encourage employees to use domestic violence leave to access external support.

Take-aways

The options discussed above are not required by law in any Canadian jurisdiction addressed herein. The law in this area remains nebulous and unexplored in many respects. However, good employers will work to connect with employees on these issues, while remaining compliant with jurisdiction-specific privacy and human rights laws. How this translates on the ground, practically, may be an issue for the courts and legislators to tackle down the road. In the meantime, employers would be wise not to lose sight of this important subject, above all during the rather turbulent and uncertain times engendered by COVID-19. 

For further commentary on this important topic, please see our webinar: Canada’s spike in domestic violence and related employment considerations.

The authors wish to thank Breanne Matheson for her help in preparing this legal update.

The authors also extend special thanks to Barbara MacQuarrie, Community Director, Centre for Research & Education on Violence Against Women & Children.