The “right to disconnect?” Three important legal issues in work-from-home arrangements
“Right to Disconnect Advisory Committee” is the latest reminder of the employment issues that can arise when employees work from home
In October 2020, the “Right to Disconnect Advisory Committee” began meeting regularly. Its mission? To provide recommendations to Canada’s federal government on supporting their workers’ work-life balance and well-being.
A briefing note on the issue on the Government of Canada website notes that mobile technology has allowed employers to require that employees “remain reachable off duty” and may be causing an “increase in work intensification.” The note also states that “engaging in e-communications for work purposes outside of work hours has been associated with poorer sleep quality, higher levels of burnout, and increased health-related absenteeism.”
Many workers who have moved from the office to home since the pandemic began can confirm the blurring of boundaries between their work time and personal time. However, the dangers of work and home “spillover” to employees’ mental health were well documented even before the pandemic arrived.
Labour Rights Law encourages employers and employees to ensure that their work from home arrangements not only follow the law, but are capable of providing employees with the support they need to stay healthy and well. To guide employers and employees towards this goal, we discuss a number of legal issues that may arise from working from home below.
1. Overtime and hours of work in a work-from-home arrangement
Under employment standards legislation, employers are required to pay employees overtime wages if they work more than the limits set out by the law. In BC, for example, qualifying employees are paid time-and-a-half for any time worked over eight hours in a day, up to 12 hours – and paid double-time for any time worked over 12 hours in a day. Employees in BC are also paid time-and-a-half for any time worked over 40 hours in a week.
These overtime thresholds include time spent working from home after a full workday. Employees who answer emails from their employer regularly beyond their normal working hours, or are prompted by their employer to do additional tasks after a full workday, are generally owed overtime unless they are managers or are specifically exempted. In BC, for example, overtime wages are due under the Employment Standards Act when an employer allows “directly or indirectly” an employee to work overtime. In Ontario, the Employment Standards Act simply states that an employer “shall pay” overtime “for each hour of work” of at least one and one-half times his or her regular rate for each hour of work over the overtime threshold; in other words, if the employee works overtime with or without authorization, the employer must pay it.
Typically, the obligation to keep track of overtime hours worked by an employee rests with the employer, not the employee. However, we encourage employees to keep an accurate record of their hours worked in the event that they need to submit a claim for overtime pay through the complaint process provided under employment standards legislation. An adjudicator evaluating the employee’s claim for overtime pay will make findings of facts based on the evidence available – so records of hours worked, email trails, or records kept on electronic devices will help an employee succeed in his or her overtime claim.
Employers may also breach hours of work provisions under employment standards legislation if employees are required to spend excessive time on their mobile devices or doing remote work all hours from home. In BC, for example, the Employment Standards Act states that “an employer must not require or directly or indirectly allow an employee to work excessive hours or hours detrimental to the employee’s health or safety.” Employers should always provide support to any employees who come to them with a reasonable belief that working excessive hours is having a negative impact on their health.
2. Human rights in a work-from-home arrangement
In every Canadian jurisdiction, it is against the law for employers to discriminate against employees based on prohibited grounds in applicable human rights statutes. These prohibited grounds include family status and mental disability.
Working excessive hours from home, or being required to answer emails or text messages any time during the day and evening, might be more difficult, or even impossible, for some employees. For example, an employee who has dependent children might not be able to respond to emails from work because the employee is taking care of their kids. Employees with diagnosed mental illnesses, such as anxiety or depression, may not be able to tolerate around-the-clock availability. Employers who refuse to accommodate these employees up to the point of undue hardship could face complaints at human rights tribunals.
3. Occupational health and safety and workers compensation in a work-from-home arrangement
Every employer must ensure the health and safety of all workers working for them. If workers are working from home, then that duty extends to workers’ homes.
At a minimum, employers should have policies in place that require employees to do risk assessments of injury in their workspaces at home, and how to report hazards and injuries. Workers should also have a safe workstation that does not introduce ergonomic hazards. These include workstations with monitors that are too low or too high, or chairs that aren’t built for sitting in seven and a half hours a day.
Workers can make claims for compensation with workers compensation tribunals for injuries that arise out of and in the course of employment. Although some employers may not turn their minds to it, this includes injuries that happen while working from home. For example, repetitive stress injuries workers suffer from home are compensable – including claims caused by bad makeshift workstations in their homes.
If employees are working from home and on-the-go, the question of whether or not the injury arises out of and in the course of employment can become harder to answer. Before the pandemic, the question of whether or not the injury happened on an employer’s premises was often an important factor when adjudicators considered the connection between the injury and the worker’s employment. If workers are required or expected to do something from outside the office, then, depending on the injury and its connection to employment, an injury occurring at home or elsewhere may be more likely to be compensable.
More on work from home arrangements: “Legal Considerations for Working Remotely”
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