What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be reexamined.
The Occupational Health and Safety Act and working from home
In Ontario, section 3(1) the Occupational Health and Safety Act (“OHSA”) states that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”
So, in regular people speak, this means that if your employee is working in their own home OHSA does not apply.
In some sense this makes sense, but in other ways, it doesn’t. An employer cannot be expected to come into an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their worker in an environment — the worker’s home — that they have no control over.
Employers — even if offices where there may not be obvious health and safety issues like noxious substances or big machines — are generally required to make sure that exits are clear, that file boxes aren’t going to fall on anyone. etc. These are the types of safety issues that could, presumably, also pose risks to workers who are in their own homes.
Workplace violence and harassment
The application of the violence and harassment provisions of OHSA make more sense in a home environment. Workers who work from home are still expected to work with their colleagues, clients, etc. In many cases, these interactions will likely be similar to face to face interactions one may have in an office *mdash; just less the risk of inappropriate touching. Workers could still be bullied or harassed virtually or over the phone. This can happen just as easily around the watercooler as on the company Slack channel.
Direction from case law
While direction from decision-makers is sparse, two decisions offer contradictory direction with respect to the application of OHSA to people working from home.
The Workplace Safety Insurance Appeals Tribunal (the “WSIAT”) stated in Decision No 2249/16, 2016 ONWSIAT 2410 that the “OHSA does not apply to work performed by an owner in a private residence”. In this case, the WSIAT was required to determine whether modified work offered to an injured worker to do at home was reasonable and safe, in spite of the fact that the work would not be covered by OHSA because it would be completed at home. The WSIAT found that the fact that work would not be covered by OHSA did not mean it was not safe.
This decision contrasts with an Ontario Labour Relations Board (the “OLRB”) decision Watkins v The Health and Safety Association for Government Services. This case involved allegations of workplace harassment and reprisal under OHSA by an employee who “worked remotely from his home office, but also travelled as part of his duties.” The OLRB allowed the complaint to proceed to a hearing. No non-application of OHSA argument was made. OHSA does apply to work done outside of a private residence, even if it is done outside of the office. For example, OSHA applies when an employee is travelling for work, attending conferences, working on a client site, etc. Perhaps the fact that this worker travelled as part of his duties brought his complaint safely under OHSA.
As it stands OHSA likely does not apply to work done at home. However, given the unprecedented number of employees now working from home, and the lack of clear jurisprudence, this could change.
Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way.