Toronto Employment Lawyer Advising on Remote Work Policies

The evolution of technology has enabled more jobs to be performed outside of the traditional workplace. As a result, many employers are increasingly offering employees the option to work remotely, either part or full-time. Without a comprehensive remote work policy, however, employers can be vulnerable to claims of constructive dismissal, workplace safety, and human rights violations.

The founder of Haynes Law Firm, Paulette Haynes, wrote the seminal text on non-standard working arrangements. For three decades, she has helped employers create remote work practices and procedures that ensure their legal obligations continue to be met, even when employees perform their work off-site.

The Importance of a Comprehensive Remote Work Policy

A remote work policy should clearly communicate all aspects of the employment arrangement to all employees. The policy should address eligibility requirements, workplace safety issues, employee obligations, and the employer’s right to terminate the remote work arrangement. An effective remote work policy should address the following:

• An objective list of specific roles eligible for remote work arrangements;
• Particulars with respect to a trial period and the metrics for assessing whether the trial period was successful;
• Employee hours, and the availability of flex work arrangements;
• Any compulsory workplace attendance requirements. For example, whether employees will be required to attend performance evaluations or all-employee meetings in person;
• The employee’s obligations regarding availability. For example, whether they are required to use internal messaging services, or respond to emails within a certain amount of time;
• Any time or productivity tracking procedures to be used for remote workers;
• Employee obligations regarding privacy and security of the employer’s equipment and/or data; and
• The employer’s right to recall an employee back to the workplace, and the employee’s right to return to the workplace if they choose.

Employer Rights and Obligations Regarding Remote Work Arrangements

Accommodations Under the Human Rights Code

Employers should be sure to offer remote work opportunities on an objective basis. If the option is only available for specific roles, or if it is offered on a case-by-case basis, the policy should include the objective criteria used to assess the suitability of the arrangement to avoid claims of discrimination.

Employees may also request the opportunity to work remotely as part of an accommodation related to one of the factors set out in Ontario’s Human Rights Code. For example, if a disability renders an employee unfit to drive, the employer could provide an accommodation to work remotely.

While employers are not required to offer remote work to employees, they are obligated to provide accommodation to the point of undue hardship. For example, remote work arrangements can help employers accommodate an employee’s needs relating to family status or disability.

Workplace Safety for Remote Workers

Employers must provide a safe work environment for all staff under the Occupational Health and Safety Act. As a result, employers should address workplace safety in the remote work policy through provisions like the following:

• A statement that all company policies relating to occupational health and safety procedures apply in remote work arrangements;
• A detailed description of the areas in the worker’s home that will be considered the “workplace” during working hours;
• The employer’s right to inspect the workplace for potential hazards or other safety issues;
• The employee’s duty to report any injuries or illnesses that occur while working remotely; and
• The investigation procedure for accidents and injuries incurred while working remotely.

Constructive Dismissal and the Right to Recall Remote Workers

Employers risk constructively dismissing employees if they recall remote workers back to the workplace. The change in circumstance is significant, potentially requiring the employee to add a lengthy commute to their workday or require the employee to make alternate child care arrangements.  Significant unliteral changes requiring remote employees to work in-office could be deemed constructive dismissal and entitle the employee to reasonable notice pay.  Constructive dismissal claims can be easily avoided by including clear and flexible terms within a remote work policy that reserves the employer’s right to recall the remote work arrangement.

Haynes Law Firm in Toronto helps employers limit exposure to constructive dismissal claims by designing policies that protect the employer’s right to recall employees back to the workplace under various circumstances.

Contact Haynes Law Firm in Toronto for Advice on Remote Work Arrangements  

Employers must walk a fine line when balancing their obligations and the rights of employees in allowing remote work arrangements. Paulette Haynes and the team at Haynes Law Firm work with employers across Ontario to mitigate their risk when it comes to workplace policies regarding remote work. Paulette’s demonstrated authority on the topic of non-standard employment arrangements keeps employers returning to her for guidance in this area. To discuss how the team at Haynes Law Firm can assist you and your business, please reach out online, or by phone at 416-593-2731.