Tierney Stauffer LLP Lawyers

Physical distancing measures adopted across Canada throughout the COVID-19 pandemic have led to the transformation of in-person employment to remote work and a significant increase of teleworkers. Remote work has many benefits for workers and employers alike, including, flexibility, savings in time and costs related to commuting, higher productivity, and reduced absenteeism. However, remote work is not without risks. Several studies conducted during and before the COVID-19 outbreak show that teleworkers work up to four more hours than their in-office counterparts. The increase in working hours may be due to remote work’s propensity to create a blurring of the lines between home and work, a lack of support by colleagues and managers, and a failure to take rest breaks. Another risk presented by remote work concerns injuries due to improper and non-ergonomic home office set-ups.

Employers in Ontario are bound by a number of regulations governing employment and employee safety issues. It is essential that employers that are new to the somewhat tricky landscape of telework ensure they are aware of relevant laws, especially where COVID-19 restrictions and safety measures may alter traditional employer responsibilities.  

Remote Work During COVID-19 and The Employment Standards Act

The Employment Standards Act, 2000 (ESA) provides minimum standards applicable to most employees working in the province, such as minimum wage, vacation, and hours of work.

The ESA prescribes daily as well as weekly working hour limits. Section 17 specifies that most employees cannot be required to work more than eight hours per workday, and the maximum number of weekly hours employees can be required to work is 48 hours. There are exceptions to these limits, but in such cases, a written agreement between the employee and employer would be required, in addition to approval from the Director of Employment Standards. Furthermore, the ESA establishes an Overtime Threshold at 44 hours per week. Where an employee surpasses this threshold, the employer is required by law to pay overtime, which is commonly paid at 1.5 times the regular rate for each hour of work in excess of 44 hours in each workweek.

In addition, employees in Ontario are entitled to a prescribed amount of hours free from work. As a general rule, employers must offer employees at least 11 consecutive hours free from work each day. This requirement is especially delicate in the remote work context, as research demonstrates the challenges teleworkers face in terms of disconnecting from work. Indeed, keeping track of working hours is easier to handle in the office. Nevertheless, employers are still responsible for recording worked hours in the context of remote work for certain employees. Recording hours worked will help ensure employees do not surpass prescribed hours of work. It is therefore recommended that employers implement a remote work policy to help track employee work hours to avoid infringing any ESA rules. 

Occupational Health & Safety When Working Remotely

The Occupational Health and Safety Act (OHSA) establishes Ontario’s legal framework for ensuring provincial workplaces are safe and free of risks to the health of employees. The OSHA delineates the rights and duties of employers and employees in a workplace, including situations where the workplace is a home office. In fact, the OHSA broadly defines ‘workplace’ as, “any land, premises, location or thing at, upon, in or near which a worker works.” Consequently, employers of teleworkers must take reasonable precautions to ensure that the conditions of their employees’ remote working environments are safe.

This requirement remains vague, as most home offices will inevitably differ from traditional workspaces, especially in the context of a provincial lockdown. It is understood that employers may not reasonably be able to provide teleworkers with optimal home office equipment under the current pandemic conditions. However, employers are still required to identify the health hazards likely to arise in a home office context, such as musculoskeletal injuries, and determine how to avoid or mitigate the risks. This may entail home inspections, post-pandemic, or employee self-assessment of the safety of their home offices.

COVID-19 Telework Employer Guidelines  

Remote work will undoubtedly become more commonplace in the general employment sector going forward. As such, employers should take advantage of the crash course COVID-19 has provided in terms of remote work management. Many of the laws and regulations that apply to in-person workplaces also apply to telework, yet their application may be somewhat altered, given the variances in environment and structure. Remote work presents a unique set of advantages as well as risks. Employers will therefore need to be attentive to concerns regarding ergonomic office equipment, working hour documentation, and ensuring that work obligations and expectations are clearly communicated, among other considerations. 

Contact Ottawa Employment Lawyers Tierney Stauffer LLP

The experienced lawyers at Tierney Stauffer LLP can help minimize your exposure to employer liability, and provide legal advice for various employment concerns including contracts, terminations, and much more. To discuss your legal matter with a member of our employment team, contact Tierney Stauffer LLP in Ottawa, Eastern Ontario and North Bay at 1-888-799-8057 or contact us online to schedule a confidential consultation.

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