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Employee Telecommuting During the COVID-19 Pandemic

26-Mar-20

By McLennan Ross Labour & Employment Team

As employers adapt to the COVID-19 pandemic and consider arrangements for employees to work from home, it is timely to review (or draft) their telecommuting policy to ensure it sets out clear objective eligibility criteria, employer expectations, scheduling and tracking hours, supervision, and the proper use of confidential information by employees working remotely. To this end, we provide some key components of a reasonable telecommuting policy:

Eligibility

To avoid the appearance of favoritism employers are advised to establish eligibility criteria as to who qualifies to work remotely including:

  • the type of work which qualifies for telecommuting;
  • the employee’s ability to work at home, set up an office, and maintain confidentiality when required;
  • the level of productivity required by employees to telecommute.

Employers should also be mindful of their human rights obligations and take a flexible and reasonable approach to telecommuting-related accommodation requests, which should be thoughtfully examined on a case-by-case basis. An illustration of a case where the employer failed to reasonably consider an employee’s request for accommodation in the form of telecommuting is found in Devaney v. ZRV Holdings Limited 2012 HRTO 1590 where Ontario’s Human Rights Tribunal found the employer discriminated against an architect for having denied his accommodation request to telecommute to allow him to care for his ailing mother.

Work Expectations

The policy should set clear expectations regarding the type and quality of work the employee is expected to perform remotely and state how work performance will be managed. It should be made clear to employees that regular work hours are to be maintained and that even though employees will be working from home, the employer has the right to and will supervise them.

Work Equipment

Employers should ensure their remote workers have the proper work equipment and be clear whether employees who use their personal device for work-related purposes will be compensated for any related costs. Employers should maintain a list of equipment provided for telecommuting purposes, including serial numbers and equipment deficiencies.

Work Space

A telecommuting policy should outline any physical work space requirements and ensure employees will work in a proper work environment; telecommuted work is to be safe and free from hazards.

Location

The telecommuting policy should state the location where employees are to work; whether they are only permitted to work in their homes or may work elsewhere. Without clarification on this point, an employee may take the position s/he may work from various locations outside of the home as was the case in Ernst v. Destiny Software Productions Inc. (2012 BCSC 542). In this case, a Vancouver software company hired Ernst to market its software allowing him to work remotely in Calgary. The agreement did not specify the location where Ernst was to work. While working, Ernst moved to Mexico taking the position he could work remotely from there. This led to his termination and an unsuccessful wrongful dismissal lawsuit. B.C’s Supreme Court found that Ernst’s unilateral move to Mexico, and his failure to accept  his employer’s directive to return to Canada (to work there) was unacceptable and constituted just cause to terminate Ernst.

To avoid ambiguity, employers should reserve the right to determine an employee’s remote workplace location.

Confidentiality

To ensure employees protect sensitive and confidential information while working remotely, employers should examine the following questions:

  • Are there security issues regarding the location at which the employee will be telecommuting?
  • To what extent will the employee be collecting/using confidential information when working remotely?
  • Will the employee be using the employer’s equipment or his/her own equipment? If employees are using their personal devices, could others have access to employer-related confidential information?
  • What appropriate technology should be implemented to ensure the security of data outside the office?

On March 17, 2020, B.C.’s Office of the Information and Privacy Commissioner issued Tips for Public Bodies and Organizations Setting up Remote Workspaces in the COVID-19 context. While this document is intended for public bodies, all employers may find the tips helpful in terms of keeping personal information safe. Employers may also wish to review these Tips for Working from Home that address security concerns with respect to working remotely with personal information. Finally, employers may consider these additional security measures:

  • Increase cyber security measures in anticipation of the higher demand on remote laptop access;
  • Ensure all devices, networks, and firewalls have necessary updates, the most recent security patches (including to operating systems and antivirus software), and have strong passwords;
  • Make sure devices are stored in a safe location when not in use;
  • Use work email accounts, not personal accounts, for all work-related emails that contain personal information;
  • Implement multi-factor authentication for remote access systems and resources (including cloud services).

A telecommuting policy should address insurance requirements such as home insurance coverage and potential damage or loss. In most cases, general liability insurance policies should cover employees working remotely. Employees may be asked to confirm their home insurance policy and coverage.

Working Remotely and Constructive Dismissal

A telecommuting policy should address how and when telecommuting may end and examine whether working remotely constitutes a fundamental employment term. If it is a fundamental employment term, an employer cannot unilaterally change this term significantly without running a risk of constructive dismissal. A general reminder of this principle is found in Hagholm v. Coreio Inc., 2018 ONCA 633 where the employee, Rosemary Hagholm, had worked full time from home 3 days per week.  Following the sale of the company, Hagholm’s new employer advised Hagholm she could no longer work from home. Rather than report to work, Hagholm took the position she had been constructively dismissed and successfully sued her employer on this basis.  The court found that the employer had unilaterally changed a material term of Hagholm’s employment which was to work remotely.

To address this issue, the telecommuting policy should clearly state that the ability to telecommute is a privilege, that employer has the discretion to modify, end, or revoke a telecommuting arrangement with an employee, and that working remotely is not a fundamental term of employment.

But for the COVID-19 pandemic, employers may not normally permit employees to work remotely. In order to respond to the current pandemic, employers may implement a policy on a temporary basis (due to the COVID-19 pandemic) and stipulate that employees will not be allowed to work from home once the pandemic is over.

Work Arrangements

Employers should consider providing employees with written confirmation of the remote working arrangement, setting out the expectations for employees to work from home (which must be consistent with its telecommuting policy), including:

  • hours of work (or minutes of instruction) per day or per week;
  • the remote use of confidential information;
  • ownership of work equipment and content;
  • reporting structures;
  • monitoring work performance; and
  • requirements to attend virtual work meetings.

As noted earlier, this document should provide for the termination or amendments to the telecommuting arrangement.

Tips and Takeaways for Employers

As employers arrange for employees to work remotely during the current COVID-19 crisis, we recommend you consider the following risk management tips and takeaways:

  1. Ensure employees have a proper and safe work space when working remotely.
  2. Ensure you have clearly communicate the expectations set out in a telecommuting policy or written document, including work expectations, hours of work, work supervision, and the use of confidential information by employees working remotely.
  3. Ensure proper security mechanisms have been put in place.

The above tips will assist employers as they navigate through these exceptional circumstances to manage their workforce and take steps to support employees who work remotely. For more in-depth advice, we invite you to attend our upcoming webinar, "Key Issues for Employers Managing a Virtual Workforce".

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