When COVID-19 forced many to work from home, it may have been assumed the arrangement would be temporary. However, even as the number of active cases decrease in Ontario, a new virus variant emerges and it has become clear that a timeline for return to a sense of normalcy in the workplace is unknown.
How will COVID-19 continue to impact employers and what might the new normal look like?
Rishi Bandhu, Labour and Employment Law specialist at Bandhu Law, provides insights on how employers can continue to adapt their remote operations and what considerations should be made to ensure safe and successful remote working environment.
Although it may have started as a forced remedy, a number of businesses have embraced the remote option. Even after it was safe to return to the office, many employers and employees chose the home office option.
According to Benefits Canada, about five million Canadians were working from home at the beginning of the shutdown, with that number dipping to 4.2 million in September.
“The sudden pandemic shutdown caught many off guard,” says Bandhu. “The employment landscape changed virtually overnight as businesses and workers scrambled to meet the new realities. Now, with the chance that more employees will be returning to the remote model, it is time to ensure your business is doing all it can to comply with the workplace regulations.”
It starts with having remote work guidelines in place. Your policy should address but is not limited to:
- Your right to impose remote working as set out by your business needs and government regulation.
- Your right to recall workers to the workplace.
- Expectations about availability for work.
- Compensation for expenses such as phone and Internet required to fulfil duties of the job.
- Provisions emphasizing security and confidentiality of company information.
- Human rights and health and safety guidelines.
Bandhu says, when it comes to health and safety there are different considerations at play for remote workers. Especially issues dealing with mental health. Employees can easily become isolated and overworked if they are working from home.
Feelings of Isolation
According to Workplace Safety & Prevention Services (WSPS), some workers can develop feelings of isolation when removed from colleagues. WSPS offer online resources to help employers and workers make remote work a productive experience.
Employers in Ontario are regulated by the Occupational Health and Safety Act. The standard is “every precaution reasonable in the circumstances for the protection of a worker”. The fact that the employee is not in the workplace and the employer doesn’t have control over the home setting is going to affect what the employer is expected to do. It is not going to be the same standard that’s applied in the office, but firms do have to turn their mind to it and reflect it in some type of policy.
“One important health and safety consideration is cyberbullying and harassment,” explains Bandhu. “People are communicating more by email, text, chat rooms or videoconferencing. These electronic communication forums are not immune to inappropriate behaviour, and may even be conducive to it. Companies should adapt their harassment policies to account for cyberbullying.”
The line between the office and home has become blurred and expectations are changing. Employers must be flexible.
Remotely Monitor Productivity
Companies should also be careful not to overstep their authority when supervising remote workers. This online report suggest that the increase in employees working from home has led to an interest in services that allow employers to remotely monitor productivity.
Says Bandhu, “Many workers reasonably expect privacy in electronic communications and flexibility in their ability to complete work. If the employer is being intransigent and demanding that an employee be at the workstation or logging into the system at certain times, that may be problematic and could create a family status issue under human rights legislation if the employee has concurrent caregiving responsibilities.”
Productivity is, of course, an important issue and it’s going to vary from industry to industry. For some workers, there may be no need to log in and out at predetermined intervals. Their output at the end of the day will be the best measurement of productivity. On the flip side, there may be a requirement to log in at predetermined times, if working in a technical or a customer support role. In this regard, it is incumbent for the employer to clearly communicate its expectations.
Companies need to recognize that even when employees are working from home, Employment Standards Act regulations are still in force when it comes to the definition of work, hours and overtime.
An employee who exceeds the overtime threshold is entitled to the overtime premium whether or not the employer has authorized it. This is borne out in Fresco v. Canadian Imperial Bank of Commerce, a recent Ontario Court of Justice decision dealing with the issue of overtime that was not employer sanctioned.
Overtime policies still apply, whether a worker does their job from home or in the office. It is up to the employers to find ways to monitor and track the time the employee is working so they are not creating an additional liability.
Working remotely has become the new normal for many businesses. Checking with an employment lawyer on how to ensure safe and successful remote working environment is a prudent decision for employers.
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