A recent Statistics Canada poll suggests that up to 20% of Ontario employers offer telecommuting arrangements to employees, allowing them to work from home or from remote offices. The same poll suggests that almost one quarter of businesses across Canada offer some form of telecommuting to employees on a regular basis. In exceptional circumstances, such as during inclement weather, many employers informally offer some employees the ability to work from home on a provisional basis.
Telecommuting poses unique and significant challenges to employers who are statutorily required to take “every precaution reasonable in the circumstances” to ensure that their workplaces are safe. However, employers are often in the dark regarding the rights and obligations of telecommuters. Presently, the law regarding telecommuting appears to be significantly underdeveloped and, in some respects, contradictory.
Occupational Health and Safety Act (the “OHSA”)
Section 1 of the OHSA contains the following broad and inclusive definition of “workplace”:
“workplace” means any land, premises, location or thing at, upon, in or near which a worker works;
At face value, the OHSA’s inclusive definition of “workplace” would appear to include a home office where a “worker” is performing “work”. However, Section 3(1) of the OHSA goes on to state:
3 (1) This Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.
In its publication entitled Frequently Asked Questions: Constructor Guideline, the Ministry of Labour (“MOL”) addresses the effect of section 3(1) as it relates only to construction at a private residence. The MOL makes no mention of telecommuting or working from a home/remote office in circumstances other than construction work.
As a result, despite the ever-increasing number of telecommuters in Ontario, there is a lack of clear legal direction regarding whether Section 3(1) exempts employers from the obligation to protect telecommuters from the hazards of their home offices. The OHSA and MOL materials supporting the statute do not appear to have been drafted with telecommuters in mind.
Surprisingly, there are only a handful of cases which consider section 3(1) of the OHSA. Making matters worse, jurisprudence on telecommuting from one area of the law appears to contradict case law in another.
The Workplace Safety Insurance Appeals Tribunal (the “WSIAT”) stated in Decision No 2249/16, 2016 ONWSIAT 2410 (CanLII) that the “OHSA does not apply to work performed by an owner in a private residence”. In that case, the WSIAT was tasked with determining whether an employer could accommodate an employee by offering modified work which would be performed at the employee’s home office. The WSIAT determined that even though the employee’s home office was “a worksite not covered by the OHSA”, the accommodated work was found to have been reasonable and safe in the circumstances. The WSIAT went on to state that even the WSIB “does not have a specific policy for determining the suitability of home study or work from home arrangements”.
The WSIAT decision can be contrasted with the Ontario Labour Relations Board (the “OLRB”)’s decision in Watkins v The Health and Safety Association for Government Services, 2013 CanLII 57037. In Watkins, the OLRB ruled that a telecommuter who filed harassment and reprisal complaints under the OHSA was entitled to proceed to a hearing on the merits of his case. It stands to reason that if section 3(1) of the OHSA exempted the telecommuter from coverage under the statute because he worked from home, his claim would have been dismissed by the OLRB without further inquiry. That said, the OLRB did not go so far as to state that the OHSA does apply to telecommuters working from their home offices.
Best Practices for Employers
Given the absence of clear guidance in the jurisprudence, it is not certain to what extent occupational health and safety or worker’s compensation law in Ontario covers telecommuters, if at all.
Until the caselaw regarding telecommuting develops, it is difficult to recommend best practices to employers seeking to comply with their obligations under occupational health and safety or workers’ compensation law. Having said that, there are some guiding questions that employers can utilize to assess whether they are protecting the health and safety of their telecommuters. These guiding questions include:
- How will an employer discharge with its obligation to inspect a telecommuter’s workplace?
- How will an employer discharge its obligation to supervise an employee who is working remotely?
- What right does an employer have to investigate an incident, injury or illness that occurs or arises at a telecommuter’s home?
- Is a telecommuter’s “workplace” limited to an employee’s home office, or does it include the entire home?
From a “best practice” perspective, employers should aim to develop clear policies that will allow them to answer the foregoing questions. As with any workplace policy, employers’ “telecommuting” policies should be reasonable, and clearly communicated to employees with adequate notice. Adopting this “best practice” approach will assist employers in meeting the “due diligence” standard, and will also help to protect employers in light of the uncertain (and developing) area of health and safety law as it pertains to telecommuters.
Please ensure to stay up to date regarding this topic and check back for any developments.
Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance.