WFH: The Legal Considerations

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With the recent increase in significant weather events, some employers may be considering an amendment to their workplace policies allowing employees to avoid the dangerous commute and work from home (WFH). Although the ability to telecommute may be attractive to both employers and employees alike, such arrangements should be approached with a serious consideration of the consequences. This blog includes a few considerations that should be made prior to the approval of a work-from-home arrangement.

The Employment Contract

The employment contract governs the relationship between employer and employee. Consideration should be given to whether the contract requires the employee to report to work at a specific on-site location every day or whether the contract gives the employer the discretion to unilaterally change the work location.

If the contract allows for telecommuting or other work-from-home arrangements it should also provide the employer with the discretion to end those arrangements. Requiring an employee to work from home or taking away the ability for them to work from home, unless otherwise agreed upon in the employment contract, may constitute a constructive dismissal.

Hours of Work

Laws requiring overtime pay and imposing limits on hours of work apply equally to employees who telecommute. Employers need to ensure they can adequately account for employee’s working time when they are out of the office and that there is audit system in place to guard against time fraud. A contact schedule may need to be arranged to ensure the employer is frequently checking-in.

Workplace Safety and Security

An employer’s obligation to provide a safe workplace includes home offices. There should be a written agreement between the employee and employer setting out who will be responsible for the day-to-day maintenance of the home office including fire protection, electrical safety and first aid. In some circumstances, it may be prudent to arrange for an inspection of the home office.

... safety is paramount in any workplace, including the home office.

Employees working from home may need additional security such as fireproof/locked cabinets, secure internet connections, or additional security software to ensure that sensitive company property is protected.

While work-from-home arrangements can provide employees greater freedom and assist the employer with ensuring a consistent workflow, they are not right for every situation. Any telework arrangement should include a clear agreement between employer and employee that sets out the obligations of each party. Always remember that safety is paramount in any workplace, including the home office.

David Spence