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Working from home poses risks to both employer and employees

'Are we going to see a complete shift to remote working opportunities, or is it going to be too much of a hassle?' asks lawyer
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The pandemic saw a huge movement of people shifting their work spaces from downtown office buildings to home-based offices, creating great benefits to employees and employers alike.

The latest set of restrictions sent many people who had started to return to the office back to their home work spaces.

And although there are up sides to pandemic-inspired home offices, there are also risks.

The working-from-home trend  be it temporary or permanent  raises questions about who should be responsible for some of the issues likely to surface.

Last month, a Quebec provincial labour tribunal decided that an employee who was injured falling on stairs in her house suffered a workplace injury, becoming eligible for worker’s compensation.

While that decision is based on legislation in Quebec and has no bearing in Ontario, lawyer Josh Valler says it does raise some interesting questions.

The Ontario Occupational Health and Safety Act (OHSA) specifically states its rules don’t apply in a private residence. But the Workplace Safety and Insurance Act does provide for some injuries in the home. 

That leaves room for some ambiguity about remote work situations, Valler says.

As a result, he has cautioned employers to get employees to take pictures of their work setups and document when they’re logging in and logging out.

“Because if the injury occurs during working hours, performing a working function, then there might be a claim that the Ontario’s Occupational Health and Safety Act kicks in and therefore an employer has failed in their duty to provide a safe work environment for their employee,” he said. “So there’s some grey area there between those two pieces of legislation that employers need to be very cognizant of.”

Lawyer Steve Rastin says employees largely agreed with the shift from the workplace to home offices when the pandemic emerged. That prompted some employers to re-draft employee contracts to contain clauses providing the employer with the right to recall workers to the workplace.

For many, it’s been an agreeable transition they would like to see become permanent. Meanwhile, some employers may have expressed an interest in having workers recalled to the office. Bringing people together in one workplace could lead to spontaneous interactions and have a positive impact on morale, firm loyalty and lead to collaborations, they’ve argued.

It is new legal territory and few of the possible disputes that could arise have been previously addressed.

“If employers are not careful, what’s going to happen is workers are going to say: ‘This is now my employment relationship and it will be constructive dismissal for you to make me come back into the office because this is the new term to my employment’,” said Rastin.

He expects there could be repercussions for organizations that don’t get their workers to sign off on recall provisions when they try to bring people back into the office.

Valler points out that different obligations may be triggered if the employer has mandated working from home versus one that is driven by a health or other concern requiring the employer to accommodate  such as providing a stand-up desk or ergonomic chair.

“It’s really important for employers and employees to be open and transparent about the workplace. It’s going to be really burdensome for some employers, especially large-scale institutions… to keep track of that,” he said. 

Should there be a determination that the OHSA applies to home-work situations, employers will be forced to update their policies to ensure they provide a safe work environment for their employees, he said.

That could lead to a public policy consideration, particularly if it becomes too much of a burden for employers.

“It’s going to be interesting to see how this unfolds,” Valler said. “And are we going to see a complete shift to remote working opportunities, or is it going to be too much of a hassle?”

There are also practical implications.

Employees may turn to their employers to cover some of the additional expenses they incur working at home, such as the increased utility costs as well as tools of the trade and office supplies.

“There is an argument the other way. Some employers have said: ‘Since you don’t have to dress for work the same, you don’t have to commute, I actually want to cut your wages’,” said Rastin.

Several large technology companies in Silicon Valley, including Facebook and Twitter, have cut pay for remote workers who move to less expensive areas. Google has developed a pay calculator that could see a drop in remote employees’ earnings.

But given the widespread use of home offices is still in its infancy, just how all this will roll out in practical terms remains to be determined.