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Are you thinking of riding out the pandemic on a warm and sunny island? How about spending the winter working from your chalet? You may want to run that by your employer first.

Since March, millions of Canadians were abruptly compelled to work remotely. Many continue to do so today, in one form or another. What are the types of issues facing employers and workers in remote working relationships, and what are the legal rules that will apply?

Choice of remote destination

In the only Canadian court case dealing with where a remote worker can perform that work, an employee of a Vancouver-area software company who was hired to work from home in Alberta was dismissed after he permanently moved to Mexico. In siding with the employer, the judge felt that although the employee was hired to work from home, that did not mean the definition of home could be expanded to wherever he preferred. In the court’s words, “home” was the employee’s residence when he was hired and not wherever in the world he later decided to go.

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However, this case predates the present pandemic and the exigencies it has caused for both employers and employees. Typically, employers have the absolute right to determine where the work is performed. However, once a worker is asked or required to work from home, a new set of rules apply. Unless an employer clearly communicates otherwise from the outset, it should not object to where the work is physically conducted as long as it can be sufficiently performed. The ability to competently complete the work is the key. Remote workers must ensure that they have access to appropriate technology (such as high-speed internet and telephone connections) and can be available during the employer’s normal business hours.

Recalls

If it is safe for workers to return to the workplace, refusing a recall order can lead to cause for dismissal. In another case predating the pandemic, a company in Burnaby, B.C., terminated a senior employee when he refused to return to British Columbia after he was permitted to temporarily reside in Montreal. The court sided with the employer because the employee refused a reasonable directive and that meant there was cause to discharge him.

However, in the scramble to send employees home, many employers failed to set any conditions around the remote terms. Once an employee acquires the right to work from home, then the revocation of that right without notice can be a constructive dismissal. The longer these employees remain working remotely without clear conditions in place, the more notice employers will have to provide of their intention to recall them back to the workplace.

Remote working and overtime claims

Overtime is still overtime whether it is performed in pajamas or the office. Remote workers are not suddenly exempted from provincial overtime thresholds unless they fall into a pre-existing exception, such as for managers or certain professions and trades. Once the provincial overtime thresholds are exceeded, remote workers must receive overtime pay just as if they worked those additional hours from the office.

Human rights and discrimination claims

Virtual workplaces are also governed by provincial and federal human-rights laws. Both employees and contractors who no longer step foot into their employer’s office still have a right to equal treatment under the law. This extends to permitting remote workers to work flexible hours as a way to accommodate their need to care for children or elders, as well as addressing any specific physical or technological limitations that arise from working from home.

I am also often asked whether an employer has to offer remote work to all employees uniformly. The answer is no. An employer may choose which staff are offered remote work and which are not, as long as the assessment of who works remotely is free from discrimination on the basis of age, race, colour, religion or any other protected personal characteristic.

Privacy rights

A number of employers have started to monitor remote workers’ productivity in new-found ways. Most of this surrounds the use of “tattleware” or other web-based surveillance software designed to measure the actual productivity of remote workers, instead of merely the amount of time they are sitting in front of a computer.

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It will surprise many Canadians to know that there are few defined rules preventing employers from effectively spying on them, provided it can be tied to productivity, training or work-quality concerns. This means that an employer may be able to monitor computer screens and internet browsing history from your home computer as long as it is not performed for any commercial purpose (such as to sell your personal information to advertisers) or for some other improper purpose.

Home office equipment

If an employer offers, but does not require, workers the opportunity to work from home, those who accept that offer are responsible to have the tools and resources necessary to capably perform the job, such as computers, printers, internet connections and sufficient data plans. Similarly, employers need not provide additional compensation to offset any additional technology costs if a remote worker can attend at the office but elects not to.

For workers who are required to work from home and do not have a choice to return to the office, employers must facilitate those work arrangements by providing the proper tools, training and reimbursement of necessary expenses.

From a legal perspective, although remote workers may be out of sight, they must not be out of mind for employers. They must be treated similar to any other employee, even if the nature of their workplace now differs considerably.

Do you have a question about workplace law? Daniel A. Lublin is founding partner of Whitten & Lublin, Employment & Labour Lawyers. Dan@canadaemploymentlawyer.com

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