Ontario’s pandemic and beyond: re-thinking the way we work and considerations for remote working

The COVID-19 pandemic has significantly re-shaped the way we think about the nature of work within certain industries. Work-from-home arrangements, while used recently in response to health and safety requirements for physical distancing, are increasingly being viewed by some employers as a long-term viable solution for their business needs. Remote work certainly has a host of advantages for both employers and employees. However, such arrangements do not come without their own unique risks. Employers implementing remote work arrangements should take into account the following considerations:

Minimum Employment Standards: Maximum Hours of Work, Overtime, and Rest Periods 

Among other advantages, remote work can provide employees with a certain degree of flexibility in the performance of their job duties. However, the flexibility offered by such arrangements carries risk that employees may unintentionally fail to take rest breaks, work in excess of their regular hours of work, and/or perform work outside of scheduled working hours. 

Employers should be alert to the requirements contained in applicable employment standards statutes which set a floor for minimum employment standards such as hours of work, overtime pay, and periods free from work. Employers are required to comply with these minimum standards unless the employee(s) fit within a prescribed exemption. In Ontario, the Employment Standards Act, 2000 (the “ESA”) sets limits on the maximum daily and weekly hours of work and also prescribes the number of hours of rest that an employee is entitled to, free from work. Furthermore, unless exempt, the ESA provides that employees who work in excess of 44 hours a week are entitled to overtime pay at 1.5 times their regular rate of pay. 

Under the ESA, employers also have an obligation to record hours worked in each day and week for certain prescribed employees. To ensure compliance with the ESA, employers should consider implementing a remote work policy (or remote work agreements) to provide clear guidance to employees regarding the foregoing. Also, to minimize the risk of employees working outside of or in excess of scheduled hours, employers should consider establishing a pre-approval process for overtime work as well as a process to effectively track and record daily and weekly hours worked by remote employees. 

Occupational Health and Safety 

An employer’s obligation to remote employees regarding health and safety will depend on the provincial occupational health and safety legislation applicable to the employer. In Ontario, the Occupational Health and Safety Act (the “OHSA”), requires an employer to provide workers with a safe working environment and to take reasonable precautions to protect the health and safety of workers. Notably, although the term “workplace” is defined broadly in the OHSA, there is a statutory exemption that purports to exclude work performed by the owner or occupant in a private residence from the applicability of the OHSA. To date, the scope and nature of this exemption as it relates to work-from-home arrangements remains unsettled. 

Human Rights 

Human rights legislation prohibits discrimination against employees on certain prescribed protected grounds and also requires that employers provide employees with reasonable accommodation to the point of undue hardship. These requirements also apply to remote employees. Particularly, the protected grounds of disability and family status under the Ontario Human Rights Code (the “Code”) may be commonly engaged in remote work scenarios such as by way of employee requests for certain home office equipment or by way of requests for a flexible work schedule or alternate hours of work. Employers should be cognizant that these requests may trigger the obligation to accommodate and, therefore, should ensure that their approach to same complies with the Code (or the applicable human rights legislation). 

Safeguarding Confidential Information

Remote work raises unique concerns regarding the appropriate handling and safeguarding of confidential business information. Employees who perform their work in a shared space with other residents in their home may inadvertently expose confidential information to those residents. Furthermore, employees who perform their work on personal electronic equipment may not have in place the appropriate software to ensure the safe handling, transmission, storage, and/or disposal of confidential information. These concerns, if left unaddressed, may create heightened risk of a confidentiality breach. To that end, if not done so already, employers should consider putting in place data protection measures including, but not limited to, a process for the handling and storage of physical and electronic documents, guidelines on using personal equipment for work purposes, directions regarding the safe destruction of company documents, and processes to ensure that privacy is maintained during work-related telephone and videoconferencing calls. Employees should be provided with training on these measures and employers should ensure that the measures are clearly documented (such as by way of a confidentiality policy) and made readily available for employee access. 

Other Practical Considerations 

While remote work has the advantage of encouraging flexibility and for some employees, may increase their productivity, the lack of (or limited) in-person, face-to-face interactions may also result in employees feeling isolated and/or result in low team morale. In response to these risks, employers may want to consider implementing regular virtual check-in meetings to ensure that employees feel supported, productive, and connected. Optional attendance social events hosted virtually such as game nights and lunch events can also encourage a positive team environment. Finally, employers should ensure that any available resources (such as remote work training modules and information technology resources) are made readily available to and are easily accessible by all remote employees. 

Take-aways

While many employers are or will soon be welcoming employees back to the physical workplace, some employees will undoubtedly continue to work remotely on a full or part-time basis. Indeed, advances in the area of technology and innovation have allowed certain employers to maintain operational capacity during COVID-19.

While remote working has its advantages, employers would be well-served by carefully considering what applicable obligations may flow from employment standards, occupational health and safety, workers compensation, human rights and privacy laws. Doing so may not only help mitigate any potential legal risks, but may very well also work towards fostering harmonious, efficient and safe workplaces across the trillium province.