Focus On

Swiss court rules staff working at home eligible for rent help | Tara Vasdani

Friday, May 29, 2020 @ 3:21 PM | By Tara Vasdani


Tara Vasdani %>
Tara Vasdani
As a remote work advocate long before the pandemic, as well as the precautious legal voice consistently touting the necessity of remote work policies, I am very pleased to report that Switzerland’s top court has ruled 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 the decision, at issue was an accounting firm’s employee, who argued that the reimbursement of a portion of his monthly rent ought to be an allowable expense, while he was obliged to work from home.

The employer, denying the claim, stated that no amended employment agreement or remote work policy existed, allowing the employee to claim any portion of his monthly rent while working remotely.

At the hearing, the court rejected the employer’s arguments, and held that the employee could not only claim $154 per month towards the cost of his monthly rent where he was required to work from home — but  moreover — could request retroactive rental payments, should he choose to terminate his employment.

The size of the space, or any steps taken by the employee to secure additional space, were irrelevant.

As the telework world is now almost certain to extend well into the future, and much as I have been advocating for the last year 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, as in this case, allowable expenses — is critical.

Within remote work policies, employers should set out the requirements of the remote workspace (e.g. it must be safe, have no external distractions, confidentiality is paramount, the employee must have access to high speed and reliable Internet, etc.), set out any equipment requirements, set out cybersecurity requirements, set out availability requirements, set out communication requirements, set out insurance and risk and address expenses.

Under the Income Tax Act of Canada, an employee can deduct from employment income the reasonable cost of rent and of the supplies the employee consumes in performing employment duties, provided the employee is required by the contract of employment to supply and pay for such expenses — and the employee has not been nor is entitled to be reimbursed for such expenses. As an employee, if your employer requests that you to work from home, home office deductions may be claimed, provided two crtieria are met:

1. Your home office must be exclusively for working; and

2. You must use that space to complete more than 50 per cent of your work.

There are three additional requirements for an employee claiming business-use-of-home expenses:

1. Your employer must require you to maintain a home office as part of your contract of employment;

2. Your employer must not reimburse you for those expenses; and

3. You must fill out and have your employer sign, Form T2200, Declaration of Conditions of Employment.

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 — pandemic or not — and more as of now, avoid pricey litigation.  

Tara Vasdani is the principal lawyer and founder of Remote Law CanadaHer 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.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer's Dailycontact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.