As the world manages its way through the current COVID-19 global pandemic, employers are required to act quickly to implement remote work arrangements. The urgency in implementing such arrangements has only become greater since the government of Ontario announced the closure of all non-essential workplaces effective March 24th, 2020 at 11:59 p.m. For more information see our Focus alert Ontario orders mandatory closure of non-essential workplaces. As a consequence of this announcement, remote work arrangements may become the only option for some non-essential workplaces to continue some or all of their operations for the duration of the closure. Although the ongoing situation adds an additional layer of complexity to the implementation of such arrangements, this article outlines important considerations and best practices for employers wishing to maximize the likelihood of success of any remote work arrangement[1].
Eligibility for remote work
Establish a list of clear, objective criteria of eligibility for remote work in order to ensure consistency in decision-making and to avoid any claims of discriminatory treatment. Relevant criteria may include but are not limited to:
- The employee’s position and whether the duties associated with it are conducive to remote work;
- The safety of the employee’s workplace and home;
- Whether requisite privacy and confidentiality obligations can be adequately addressed during remote work;
- Any competing obligations at home that might interfere with the employee’s ability to remote work; and
- Whether there are any performance issues that might make remote work inadvisable.
Clear hours and location of work
Set clear expectations as to when and where the work is to be carried out. If not already specified in the applicable employment contract or collective agreement, such clarity will assist in the following ways:
- Provides greater certainty as to the applicability of WSIB insurance or other benefits in the event of a workplace injury;
- Prevents issues related to the use of multiple work locations or unsuitable work locations (for example, in different time zones or where access to technology is limited);
- Clarifies requirements around availability during the employer’s core business hours; and
- Addresses concerns as it relates to benefits coverage outside of the usual province and/or country where work is performed.
Liability
Review relevant insurance policies to assess any potential liability or other coverage issues relating to employees performing remote work. Similarly, employees should be required to thoroughly review their home insurance policy, as well as applicable municipal zoning and other laws, to ensure compliance prior to performing remote work.
Occupational health and safety
Be aware that it is not clear whether occupational health and safety legislation applies to remote work arrangements. Unless and until this issue is settled in the applicable jurisdiction, employers should treat remote work as falling under the application of relevant health and safety legislation and take every precaution reasonable in the circumstances to protect the health and safety of their employees. What is appropriate will depend on the work and the workspace.
Confidentiality and privacy
Consider privacy-related implications, including:
- Whether to allow employees to use their own equipment or to provide employer-owned equipment;
- How and under what circumstances to permit the removal of confidential information from employer premises;
- Whether sufficient cybersecurity measures are in place to protect data accessed during remote work;
- How confidential information will be used, stored and managed during remote work (including where other members of the household may have access to such information);
- How to access data and track activity in a way that does not breach relevant privacy legislation;
- How to ensure appropriate access to data by the employer; and
- How to ensure the prevention of accidental loss or disclosure of confidential information.
Regulatory compliance
Determine whether there are any specific rules pursuant to a regulatory body or professional association that would apply to remote work. Remote work arrangements must permit employees to respect any such rules while performing remote work.
Best practices
Implement remote work agreements, supported by a thorough and detailed remote work policy. Through the use of remote work agreements, employers can pre-emptively address issues including:
- Setting clear expectations, not only with respect to hours and location of work, but also with respect to such things as work deliverables and response time, availability by phone or email during regular business hours, not having other commitments including dependent care responsibilities during regular business hours, requiring that notice be provided when the employee’s regular business hours are to change, etc.;
- Setting expectations and limitations on the use of employer-owned and/or employee-owned equipment for performing remote work;
- Setting expectations and limitations on the expenditure of employer and/or employee funds for the purchase of equipment for performing remote work;
- Imposing rules to protect physical safety (for example, requiring space have certain features in order to meet occupational health and safety requirements), as well as confidentiality and privacy;
- Setting out anticipated disciplinary action in the event of a breach of the remote work agreement and/or policy; and finally,
- Providing for the ability to withdraw eligibility for remote work at the employer’s discretion.
In our view
Remote work is not possible for all employees or for all employers. This article provides guidance to those who are transitioning all or some of their workforces to remote work arrangements, whether now or in the future. Urgent needs may make it challenging to take into consideration every issue that might be relevant to a remote work arrangement or to enter into a comprehensive remote work agreement; however, the time spent doing it right now will assist you to manage in the future.
By Kecia Podetz, Emond Harnden
[1] Note that where a remote work arrangement is related to the accommodation of a protected ground under human rights legislation, additional considerations, including but not limited to the duty to accommodate, will apply.
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