Hybrid offices are creating liability headaches for employers

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The heyday of the hybrid office is coming to an end.

Many CEOs are grumbling that model – a mash-up of remote and in-person work that gained popularity during the COVID-19 pandemic – is making their employees less productive and corroding corporate culture.

Perhaps that “productivity paranoia,” as Microsoft calls it, is all in our bosses’ heads. But the great hybrid experiment is hitting a new snag – one that gives credence to the view that more people should return to the office.

Liability headaches are heaping up for companies in a range of industries as large numbers of employees work from home. They involve everything from occupational health and safety issues to privacy and security concerns.

If an employee is hurt while working from home, is it a workplace injury? Should businesses provide workers with ergonomic chairs for remote work? Can health benefits be extended to workers residing in far-flung jurisdictions?

What happens if a family member overhears sensitive information during a Zoom call? Are employees leaving confidential documents lying around their homes? Can companies require that employees regularly change the passwords on their residential WiFi routers to prevent cybersecurity breaches?

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These are just some of the questions that executives are mulling nearly three years into the pandemic. The answers, it seems, aren’t always clear-cut.

“Liability is definitely a big issue and employers do need to turn their minds to that when looking at either a fully-remote or hybrid-work situation,” said Samara Belitzky, a labour and employment lawyer with Samfiru Tumarkin LLP.

With respect to workplace injuries, Ms. Belitzky points out that most employers already have coverage through provincial workers’ compensation schemes.

In Ontario, for instance, an employee would be able to file a claim with the Workplace Safety and Insurance Board. In such cases, an employer wouldn’t have liability and the WSIB would assess whether it was, in fact, a workplace injury. That determination, she said, would be based on the particular circumstances that surround an injury.

“If I injure myself at home, but it’s because I’m doing laundry or taking the garbage out or something that’s not work-related, well then, that wouldn’t be considered a workplace injury,” Ms. Belitzky explained.

“If [workers] injure themselves at their desk – they hurt their wrist or they hurt their arm while they’re working – that would be something that would be considered a workplace injury.”

But making a determination gets tricky if an employee is multitasking. Many working parents, for instance, regularly take work calls while also tending to domestic chores such as cooking or chasing after children.

In fact, a 2021 decision by a Quebec administrative labour tribunal sparked a debate about the definition of workplace injuries in the era of hybrid work.

In that case, Alexandria Gentile-Patti, an Air Canada call centre employee who was working from home, fell down the stairs and hurt herself during her lunch break.

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Although the airline conceded that she was hurt, it questioned whether the accident constituted a workplace injury since she wasn’t at her computer at the time.

Not only did the tribunal rule that her fall was indeed a workplace injury, it also deemed her eligible for workers’ compensation. In making that determination, the tribunal stated her fall, which occurred just moments after she disconnected from her workstation, represented “an unforeseen and sudden event” that occurred during work.

“There were a lot of people who disagreed with the determination that it was considered a workplace injury because the person wasn’t actually working while they were injured,” Ms. Belitzky said.

The prevalence of hybrid work is also giving rise to privacy and security issues.

Do all companies protect their data, including client information, by controlling the degree of access workers have to internal systems? Are they doing enough to prevent workers from using personal e-mail or messaging apps to conduct business?

It’s doubtful.

Ms. Belitzky advises companies to have policies that outline expectations for employee conduct.

“Have them review it, have them sign off,” she said. “For companies that have extremely sensitive data, those employers may prohibit working remotely if the data is so sensitive that there can’t be any risk of any breach.”

That, of course, raises the question of whether companies can force their employees to come back to the office. The short answer is that it depends on the terms and conditions of employment prior to the pandemic, Ms. Belitzky said.

Interestingly, as she points out, just because a company doesn’t put those requirements in writing, it doesn’t mean there isn’t an employment contract in place.

A lot of companies embraced the hybrid model to attract and retain workers. But the economy is slowing and executives are concerned about liability risks.

While hybrid offices are still popular with many workers, the blurring of our professional and private lives is problematic for some CEOs. We should all expect to show our faces around the office more this year.