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Legislative protection for remote workers: A Canadian proposal | Tara Vasdani

Tuesday, October 13, 2020 @ 1:55 PM | By Tara Vasdani


Tara Vasdani %>
Tara Vasdani
As I began my employment law work in the digital nomad and remote workspace in 2018, I could not have predicted its uptick in 2020. Curious, courageous and inquisitive, I sought to explore how cybersecurity, contract law and employment legislation could or should apply to workers working outside of the jurisdiction of their employers, or at home.

The COVID-19 pandemic zeroed in on remote working on a mass scale. Although most new arrangements were emergency in nature, the increase in telework has led to the need for extreme responses in law, including the drafting of appropriate policies, legislation and (hopefully) some new precedents.  

Going back one year pre-pandemic, my team and I discussed the legalities of remote work in Forbes. Which types of arrangements were breaking the law? How did legislatures and government bodies need to respond? What new jurisprudence was needed?

Today, telework is the new normal for an increasing number of workers globally and it’s likely to stay that way. Although the Canadian government and regulatory bodies have been slow to respond, recent months have seen a number of countries across the globe bringing in new laws on remote working.

On Sept. 22, Spain introduced a Bill of Rights for remote workers. The main thrust of the decree is to require remote working arrangements to be formalized through written agreements.

Importantly, the Spanish decree makes clear that remote working must be voluntary for the employee, and that any refusal to work remotely will not justify termination of that employee’s employment. Read literally, this is the case even where that refusal might force the employer to maintain an office and incur costs that it might otherwise have been able to offset.

Similarly, an employee’s employment cannot be terminated, nor their working conditions substantially modified, only because they retract their agreement to work from home or they encounter difficulties carrying out their role while working from home. Much like Ontario’s Human Rights Code, the employee must not suffer any detriment or negative consequences to their physical or mental health while working remotely.

At Remote Law Canada, before the pandemic, we argued that employers introducing remote workers should be prepared with good employment contracts and remote work policies. Employment agreements should clearly set out when employees are expected to work, what technology and insurance requirements are needed for their remote office space(s), how they are expected to keep in touch, how frequently they are expected to communicate and  include the right to bring a remote worker back into the main or satellite offices should the need arise. If employers have an operation that is partly remote and partly in office, a remote work policy should clearly address how requests from office employees to work remotely will be dealt with.

The German federal Minister of Labour launched a legislative initiative for legal regulation on mobile work on or about Oct. 5. The draft Mobile Work Act is intended to provide a legal entitlement to employees to work at least 24 days per year via mobile work. More importantly, the Act is said to prevent employers from refusing remote work in the absence of compelling business or operational reasons; options for parents to take turns working from home one day per week; the obligation on employers to digital time record, with fines of up to 30,000 euros for failure to comply; and work accident insurance coverage extensions to the home office.

In May, I wrote about Switzerland’s top court ruling that employers operating emergency COVID-19 remote workforces must contribute to a portion of their employees’ monthly rental payments, if and where employees are expected to work from home. In 2019, I also discussed Costa Rica’s new work from home bill made into law on Sept. 27, 2019, officially permitting telecommuting as an alternative work arrangement for employees in both the public and private sector. Costa Rica’s law set the standard for work-from-home arrangements, outlining the responsibilities and rights of both the workers and their employers.

So what is happening, and needs to happen, within our Canadian borders?

As touted by my firm for years, the failure to precisely define the scope of the work arrangement in employment contracts and/or to draft new employment agreements each time employees’ work arrangements change could amount to a constructive dismissal. Furthermore, the failure to properly set out the requirements of the workspace and insurance obligations potentially opens the floodgates to occupational health and safety issues and to costly employment disputes.

Section 1 of Ontario’s Occupational Health and Safety Act (OSHA) contains the following broad and inclusive definition of a workplace: “‘workplace’ means any land, premises, location or thing at, upon, in or near which a worker works.”

At face value, the Act’s inclusive definition of “workplace” would appear to include a home office where a “worker” is performing “work.” However, s. 3(1) of the OHSA goes on to state:

Private Residences

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.

The Ministry of Labour (MOL) recently addressed the effect of s. 3(1) as it relates only to construction work at a private residence. The MOL at no time mentioned or commented on remote work or working from a home/remote office in circumstances other than in construction.

Therefore, despite the rapidly increasing number of remote workers in Canada, there is a lack of clear legal direction regarding whether s. 3(1) exempts employers from the obligation to protect remote workers from the hazards of their home offices.

As our governmental and regulatory lacunas become more and more clear, it is time to consider what steps, if any, need to be taken by businesses, workers and governments to achieve equitable compliance.

For starters, clear laws and regulations surrounding hours of work, break times, occupational health and safety protections, insurance obligations and employment arrangements are critical. Thereafter, a remote work policy should contemplate how and when a worker arrangement can be cancelled or amended — including a provision that explicitly states that the employer may change or cancel a remote working arrangement at its will.

The policy should also outline any requirements for the physical workspace of the employee. This could include measures to ensure that a workspace is compliant with any applicable health and safety legislation and municipal building code requirements. An employer can also include who can access the workspace and where an employee is permitted to work; i.e., only in their own home, within a certain geographic area or anywhere they have Internet access.

On the government side, having specific legislation for remote workers would provide greater clarity on issues such as equality of career opportunities and exactly what needs to be paid for by employers in terms of home office equipment.

As the remote work world is now almost certain to extend well into the future, comprehensive remote work policies and amended employment agreements to account for the length of the remote-working arrangement, the ability to recall and/or terminate the arrangement, any employment relationship amendments, communication guidelines, health and safety obligations and allowable expenses is critical.

Only through the use of well-crafted legal documents can employers focus on the key aspects necessary to ensure their teams work well as a distributed team — as our pandemic goes on — and ensure the safety and longevity of their workforce.

Tara Vasdani is the principal lawyer and founder of Remote Law Canada. Her practice centres on employment law, civil litigation and remote work. She has been featured in Forbes. She was the first Canadian lawyer to serve a statement of claim via Instagram, and you can reach her directly at tara@remotelawcanada.com.

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