Legal Considerations for Working Remotely

To slow the spread of COVID-19, many employees are choosing to continue working remotely, where they can practice social distancing. Below we have outlined some of the legal considerations that both employers and employees need to be aware of in order to successfully navigate through the uncertainties of working remotely.

WorkSafeBC Rules Regarding Safety at Home

Many health and safety roles, rights, and responsibilities are still applicable to employees working from home or remotely, just as they are in traditional workplaces. WorkSafeBC has created guidelines outlining employer and employee responsibilities to ensure health and safety in home workspaces.

Firstly, an employer should make sure that it has health and safety policies in place, and that each party understands their role, duties, and responsibilities when working remotely. These health and safety policies should require the employees to conduct an assessment of their home workspace prior to commencing work and to report any workplace hazards to the employer. The policies should also address:

• evacuation protocols;
• emergency preparedness;
• reporting workplace injuries and incidents;
• ergonomic considerations; and
• safe workplace practices.

Whether an employee is still entitled to compensation for an injury while working remotely or at home depends on whether or not the injury arose “out of and in the course of” the employee’s employment – in accordance with the Workers Compensation Act.

Performance Management and Employee Accountability

A successful arrangement for employees to work remotely requires a mutual understanding between the employer and its employee. Each telework situation will vary depending on the type of work and the employer and employee needs. There is no how-to manual or strict guidelines, however, there is certainly a need for the employer to communicate clear policies and expectations. Employers are well-advised to have those expectations in writing.

Employers should make it clear that employee expectations and policies concerning performance and productivity are still in effect. A successful remote workforce requires the employer to provide its employees with open and ongoing lines of communication. The employer’s policies should address issues such as:

• mandatory or flexible hours of work;
• schedule/attendance management;
• emergency preparedness;
• employee tracking of hours and work products;
• targets and team goals;
• how to communicate with managers and supervisors;
• how to report issues and concerns;
• overtime and requested time off approval process;
• support for employees’ health and wellness;
• information security;
• procedures to check on the well-being of workers; 
• procedures for overtime approval, tracking, and pay; and
• availability of employees in a mandated time frame.

In relation to information security, employers must proactively ensure that all employees are informed of their policies with respect to safeguarding private and confidential information and protecting their data. To this end, employers must have clear protocols surrounding remote work and the locations in which work is permitted. Employees should be aware that some remote work locations, such as out-of-province locations, or those with public internet connections, are prohibited. This includes working from a coffee shop or public library.

Employees should be aware that all the provisions of the Employment Standards Act are applicable to remote work and employees should be mindful to maintain appropriate hours of work, overtime, breaks, and time off.

Home Office and Equipment

Where employees have created work environments in their homes, they likely have made some investments in technology and equipment to perform their work. Therefore, employers are responsible for updating their policies regarding the use of technological equipment for remote employees as well as policies around technology and equipment related expenses and reimbursements.

Employees may be entitled to tax rebates for expenses related to their workspace. Typically, the employee is responsible for working with the Canada Revenue Agency to obtain the information they need. Employees can also request that their employer provide them with a Form T2200 and all relevant policies.

Employers and employees should discuss other home office expenses such as telephone and internet plans, heat, hydro, and insurance, and who bears the responsibility for these costs.