Is your HR team fully prepared to answer the questions surrounding mandatory remote work while still keeping your employees safe?
COVID-19 has forced many employers and employees to start working from home, raising questions about the duty to accommodate and an employer’s responsibility to keep their team safe.
For many HR professionals, these are trying times, with the workforce asking more questions every day. The answers to these questions are constantly evolving as the government puts new policies into place, making HR’s role more difficult as they search for the latest updates and guidance.
In order to help answer some of the bigger questions affecting HR right now, we reached out to Kim Condon, Senior Legal Research Associate at Blue J Legal and chair of Blue J Legal's Ethics Board, RELAI (Responsible, Ethical, Legal AI). She gave us insights into what organizations should consider when setting work from home policies, and how they can continue to meet their duty to accommodate and health and safety obligations.
How could the current situation affect the duty to accommodate?
For now, the duty to accommodate remains unchanged. Employers still have an obligation to accommodate employees’ disabilities up to the point of undue hardship. What amounts to undue hardship may vary with the circumstances, however. Certain measure that may have been feasible previously may amount to undue hardship in a situation where a global crisis like COVID-19 presents an existential threat to the business.
That said, it is possible that there will be a sustained increase in the use of remote work arrangements as an accommodation measure, even after the threat of COVID-19 passes. This is because both workers and employers will likely have increased comfort and familiarity with telecommuting technology.
What are the obligations companies have to their employees in situations like the threat of COVID-19?
Employers have a general duty to take every reasonable precaution to ensure the safety of a worker. What is reasonable can vary depending on the circumstances. In the case of a global infectious disease outbreak, that could include directing employees to work from home. Where remote work is not possible, it might include providing employees with personal protective equipment and permitting employees to maintain distance from customers or from each other.
What do employers need to consider when implementing mandatory work from home arrangements?
Employers should strongly consider implementing a written policy on remote work if they do not have one already. The policy should address such matters as who is allowed to or required to work from home, acceptable and unacceptable use of remote access systems, protection of privileged or confidential information, and consequences for non-compliance.
What are an employer’s obligations regarding self-isolating or quarantined employees?
In most cases, employers are not required to pay an employee who cannot work because he or she is self-isolating or quarantined.
That said, several provinces are implementing or have implemented job-protected unpaid leave for workers affected by COVID-19. Alberta has enacted legislation enabling workers who are under quarantine or self-isolation due to COVID-19 to take 14 days of unpaid leave. In Ontario, workers are now entitled to unpaid leave if they are unable to attend work because of self-isolation measures, or because they need to care for children whose school or daycare is closed as a result of an infectious disease outbreak. British Columbia recently adopted legislation allowing workers to take unpaid leave without risking their jobs if they are unable to work due to COVID-19. Other provinces may soon adopt similar measures.
Are there significant differences in remote work obligations between provinces?
While working from home is usually up to the discretion of individual employers, Ontario and Quebec have ordered the closure of all non-essential businesses. That means that unless the workplace is classified as an essential business, working from home will be necessary if the business is to continue running.
For regulated professionals, guidance should be sought from the applicable provincial regulatory body. Some provincially-regulated professionals, such as lawyers, have a special duty to take steps to restrict access to confidential client information and to store client files in a secure location when not in use.
Companies may have the right to restrict employees on coming to work, how can they reduce the risk of discrimination claims?
In order to ensure the protection of all workers, employers can restrict an employee from coming to work if the employee has been exposed to, or shows symptoms of COVID-19. In order to avoid the risk of discrimination claims, it is recommended to have a written policy that is distributed to all employees. The policy should be based on objective criteria. It may specify that employees should not return to work for at least 14 days after returning from travel outside the country, or if he or she tests positive for COVID-19.
If an employer decides to send an employee home due to health concerns, the employee should be informed of the reasons why. Such decisions should be carefully documented. Employers should also be mindful of protecting employees’ personal medical information to the extent possible.
How can a company/employer meet their legal responsibilities concerning an employee’s health and safety if they’re working from home?
It can be difficult for an employer to ensure the health and safety of employees if the employer no longer has control over the physical workspace. That said, if an employee is working from home, the employer still is under an obligation to accommodate the employee up to the point of undue hardship. If an employee requires adaptive equipment to perform their job, they should be allowed to take it home, if necessary. Employers should also consider allowing employees to take home any ergonomic or workspace equipment that the employee regularly uses at the office, such as monitors, footrests and headsets.
