Employers must accommodate, to a point, during the pandemic

Legally, employees have no right to work from their homes, Howard Levitt writes.

Five million Canadians have suddenly started to work from home during the current pandemic to add to the two million already set up to work remotely PRE-COVID-19.

As a raft of Canadians try to circumnavigate their new regime, conventional and social media are replete with tips, complaints, and jokes about just how to do it, as well as the attendant pratfalls.

With the government encouraging people to stay in, we are quickly forgetting that legally employees have no right to work from their homes. Even if they can do so equally efficiently, which is seldom the case, the employer decides where work must be performed.

Assuming the workplace is “safe” i.e. social distancing, necessary protective equipment and ill employees not permitted to attend, companies have an absolute right to require employees to turn up at the appointed workplace or risk losing their jobs.

With productivity plummeting, many employers have considerable misgivings about their now empty workplaces. With rare exceptions, working from home does not provide the productivity or quality, let alone the communication and teamwork, of working with colleagues. And despite the advantage of avoiding stressful commutes, many employees are anxious to return.

But out of sight does not mean impervious to liability. An employer bears responsibilities toward even those employees happily sitting at their kitchen tables.

Despite the physical separation, employers should keep certain things in mind.

Companies should clearly communicate that the current arrangement is an exceptional, one-time, arrangement. The employee has not acquired a right to continue working from home once the virus is under control and the government eases restrictions.

If they do not make that clear, an employee may be able to argue that working from home has become a term of their employment, revocable only with advance reasonable notice, and that ordering an immediate return is a constructive dismissal.

Human rights remain protected whether in a downtown office or a family living room. Employers still have a duty not to discriminate and to accommodate employees’ disabilities to the point of undue hardship.

One example of how the issue of accommodation might arise is in how employees are set up to work remotely. If an employer decides that it will provide employees with work laptops to allow them to work from home, they should consider whether any of their employees require additional equipment.

For example, if an employee is vision-impaired and requires an extra-large monitor, or an adaptive keyboard, the employer will have to provide those accessories along with the laptop.

To be clear, the principle of accommodation does not change because of employees change of location. But since employees will be using different tools in a different environment, novel accommodations may be required.

Since schools are closed, many parents are performing double duty. Working from home while also caring for and homeschooling their kids. Family status is one of the protected grounds under human rights legislation.

If it’s possible for the employee/ parent to complete all of their duties on their own schedule (for instance, by working early in the morning and later in the evening), the employer must permit them to work those alternate hours.

But in some cases, there could be a legitimate business need for an employee to be accessible without interruption during business hours, and it is impossible for the employer to accommodate the employee’s familial obligations.

In those circumstances, if daycare or solutions cannot be found, the employer may be entitled to place the employee on unpaid leave. However, employers should remember that they have a duty to accommodate up to the point of undue hardship.

Finally, no matter where the work happens, companies are still required by law to protect the personal information that’s in their control. This could include home addresses, medical records, and financial information of employees as well as customers.

Once employees start working from home, companies typically have a dramatically reduced ability to control and monitor how the staff is handling personal information.

This might be because physical files are being taken home, which increases risk of being lost or seen by someone who is not an employee. Or employees may be using their personal computers on their home networks to complete their work, which are usually less secure than work computers.

The Office of the Privacy Commissioner of Canada recommends that companies create clear policies and procedures for employees to follow when handling personal information.

A policy on data protection should address the employee’s responsibilities when using their personal devices for work, minimum security standards to be adhered to, and clear guidelines for remote accessing, using, and storing company data, to reduce risk of a security breach.

Companies must also ensure that employees working on their home computers on company business do not breach confidential information or be defamatory as the company remains liable in both cases.

Few Canadian businesses have been able to continue with business as normal. Most have been forced to find creative and flexible responses to the COVID-19 pandemic. But no matter what response employers are using to respond to the virus and social shutdown, they need to remember that basic legal obligations towards their employees have not changed.

I will be answering questions regarding COVID-19 and employment in my Saturday columns. Write to me at levitt@ levittllp.com.

Financial Post

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.