From here to there: Pandemic tips on managing teleworking employees in Quebec

While many employers in Quebec have now reopened their doors to welcome returning employees back to the physical premises of their establishments, a certain number of employees will certainly continue to work remotely. Although this can be beneficial in many respects, there are a number of considerations employers should keep on their radar, to help ensure effective control and related measures. The purpose of this legal update is to remind employers of some key issues to consider and with some practical tools in this area. 

Teleworking, defined

The term “teleworking” is not expressly defined under Quebec laws. However, Quebec’s Ministry of Labour offers the following definition:

[translation] Teleworking allows employees to perform some or all of their work outside the employer's premises. Employees usually perform their duties from home and delivers the results of their activities when at the office or by using available means of telecommunications devices (fax, telephone, email, etc.).

The Ministry also provides certain guidance on teleworking, as follows:

• [translation] This work arrangement is not a work-life balance measure as such, but it allows employees to manage their time by giving them the opportunity to meet their work-life balance needs.
• This measure may be permanent or temporary (…).
• For employees, telework means a work environment of their choice and reduced commuting time.
• For the employer, telework means an excellent measure used to recruit and retain personnel as well as a means of increasing employees’ productivity and reducing the rate of absenteeism.

In short, while applicable laws do not specifically address teleworking as such, it can generally be construed as a term of employment, either on a full- or part-time basis, based on the terms and conditions defined by the employer’s policies, somewhere outside the employer’s main physical workplace, and with the assistance of virtual or technological means. 

As a term of employment, teleworking is normally governed by employment contracts or employer-constructed policies, which employees should know and agree to. If such an arrangement is not established, it is possible that such an arrangement may be imposed unilaterally by the employer in the course of employment. This, however, should be carefully considered before its implementation, keeping in mind that legal issues related to such a measure may arise.

Health and safety

In particular, teleworking raises a number of issues from an occupational health and safety perspective. In Quebec, employers are subject to substantial health and safety obligations, in particular those provided under section 51 of the Act respecting occupational health and safety. To that end, it is important to note that health and safety legislation in Quebec defines the workplace as “any place in or at which a person is required to be present (…).” 

However, in the “new normal” of COVID-19, teleworking inevitably begs the following question: To what extent is an employee’s home considered as being part of the “workplace” as understood under Quebec laws? 

In Quebec, the courts have held that considered an employee’s private residence may, in some cases, be considered as a place of work. Past decisions made in the workplace-accident context provide some guidance in this regard. For instance, in Club des petits déjeuners du Québec c Frappier¹ , an employee suffered lumbar sprain while lifting a box containing files and teleworking from home. In its decision, the Commission des lésions professionnelles du Québec (now, the Administrative Labour Tribunal) found that the teleworking employee had sustained an injury at work. The Commission wrote: 

“[Translation] It should be pointed out that it is wrong to assert […] that the assumption in section 28 of the Act does not apply because the worker was at her residence when the event occurred and, therefore, she was not at her workplace. Since the worker engages in teleworking, her residence must be considered as being the workplace.” [emphasis added]

In another case, albeit in the public sector, Desrochers et Agence du revenu du Canada² , a worker sustained an injury at work while trying to lift and carry a suitcase filled with work-related documents from her car to bring into her home where she was working remotely. According to the administrative judge hearing the case, her employer should have reasonably expected that she would have to transport her work-related documents from her office into her car, and from her car into her home for teleworking purposes, given her terms of employment. As a result, he considered this activity to be work-related and that the accident had occurred at the place of work.

In sum, Quebec case law, though not developed in depth in this area, has, in the past, broadened the scope of “the workplace” to include premises outside the employer’s traditional establishment and, in appropriate circumstances, the teleworking space. For this reason, it is essential for employers to consider measures applicable to the teleworking premises, provide clear guidelines on work performance, and ensure supervision thereof, as if it was an extension of their establishment. This can, among other things, help to mitigate legal risks. 

Means of control and site visit 

In addition to health and safety, Quebec employers must also put in place control measures to verify compliance with their guidelines, including employee performance, or how the teleworking site should be laid out. To do so, the use of technological means may prove useful, but whether it is possible to carry out inspections at the residence of their employees remains a central question for many employers in Quebec.

To date, the law provides a dearth of guidance on this issue. However, given some of the fundamental rights enshrined under Quebec’s Charter of Rights and Freedoms, in particular with respect to privacy, entering the property of an employee could raise various legal issues.

Employers should therefore, as a risk-mitigation measure, consider including provisions in employment contracts or adopting policies or measures under which teleworking employees give consent to the employer to access their home, for legitimate, employment-related purposes, and in compliance with any direction given in this regard. In the absence of a clear policy and employee consent, certain employees could possibly argue that the employer should not access their private residence, even for reasonable work-related reasons.

That being said, there may be a number of legitimate reasons for which an employer may justifiably access a teleworking workspace, including for the purposes of assessing the implementation of reasonable accommodations or ensuring the safety of the premises and of the equipment used. In such circumstances, it is possible a physical visit of teleworking employee’s home could be legitimate. In all cases, employers would be well served by setting clear control measures regarding such a visit, in particular by notifying the employee in advance and preferably in writing.

Take-aways

Since Quebec’s first confirmed case of COVID-19 in February 2020, there is no doubt that employers have had to quickly and hastily adapt to find innovative and creative ways to stay in business. 

While teleworking is certainly among them, employers should be mindful of any related legal risks, and what mitigation strategies can be properly implemented to curtail them. Helpful strategies in this respect include considering appropriate provisions in employment contracts, implementing a cogent policy that applies to all teleworking employees, and delineating employee rights and obligations when working remotely. To that end, the employment contract or the policy in place should refer in particular to the following elements:

• Clarifications on the workplace at home and the layout of the premises;
• The schedule in effect, as applicable, and whether or not it is necessary to report to the employer’s establishment;
• The possibility of requiring the physical presence in the workplace or the full-time return to the employer’s establishment;
• The description of the equipment provided by the teleworker or by the employer and the conditions of use;
• The rules with respect to the protection of confidential information found in the home or that is accessible through technological means made available to the employees.

Looking onwards, teleworking will undoubtedly remain a necessary measure for many employers, and, in some cases, may progressively take on a more permanent role. For this reason, the need to properly manage telework and carefully consider related issues will certainly be heightened for many employers operating in Quebec at this time.