Are you legally responsible if an employee is injured in their home office?
Since the advent of remote and hybrid work, Canadian organizations have had to evolve and pivot in ways employers never imagined. And, as employment lawyer Stuart Rudner tells HRD, the changes have been hefty when it comes to occupational health and safety (OHS).
In the new white paper written by Rudner Law and published by UKG, Occupational Health and Safety Guide for Canadian Employers, Rudner says that misconceptions about health and safety responsibilities in “work from home” models have given rise to compliance issues.
“Initially, when the pandemic struck, and people began working remotely, a lot of employers had this sense of relief that now everyone was out of their physical office, they didn’t need to worry about health and safety,” he tells HRD.
“This, of course, is absolutely incorrect. Just because an employee works remotely from home doesn't absolve the employer of their obligation to ensure their safety.”
When it comes to workplace safety, a "workplace" is not limited to the traditional place of work. Even before the pandemic, "workplace" was not limited to anything within the four walls of the building; for example, an employee on a business trip or attending an employer-sponsored social event could be covered by occupational health and safety legislation.
Rudner reveals that we’re now seeing more legal cases concerning health and safety in remote work across Canada, citing a recent Air Canada case in Quebec. In this instance, an employee working from home tripped and fell down the stairs. The employee was walking from her home office to her kitchen during her lunch break when she fell, with the court ruling that she was, in fact, eligible for workers’ compensation benefits. The judge added that the injury was a “sudden and unexpected event that occurred during work.”
“These laws are different in every province,” adds Rudner. “But in that case, the court found that because the incident was part of the mandated lunch break, it occurred in the workplace - and therefore, it was covered by workplace safety legislation.”
Rudner adds that he’s advising his clients to be very clear when delineating what is and what is not the workplace in an employee’s home.
“You need to be very clear if you're working at home which part of the home you're working in,” he says. “And employees have a responsibility here too. An employer should have policies requiring anyone working from home to keep that workplace safe. For example, some of our clients require a photo of the workplace and ask that an employee provide written assurance that there are no tripping hazards around.”
But what are the legal ramifications of not adhering to these new health and safety guidelines? For employers, it could range from a slap on the wrist to jail time – with more severe breaches holding individuals, such as business owners or CEOs, personally accountable.
“If there was a huge workplace tragedy in which many people were injured or killed, and it is shown that the employer deliberately failed to take steps to ensure that the workplace was safe, that could mean prison,” says Rudner. “Though it’s highly unusual.”
To keep on the right side of the law, Rudner preaches due diligence, especially concerning policies. For example, just because employees aren’t in your physical space doesn’t mean you’re exempt from your occupational duties. And, as Rudner explains, when it comes to just cause terminations, courts are taking a stricter stance on health and safety breaches.
“I’ve noticed that courts tend to be quite deferential regarding health and safety policies,” he says. “Whereas in some cases, if someone is fired for breaching a policy, courts will often say that there was misconduct but didn't warrant dismissal. However, they tend to take a much harder line when it comes to occupational health and safety. If an individual is shown to breach health and safety policies, especially if they've done it more than once, it's much more likely a court will say there was just cause for dismissal.”
Keeping workers safe is a priority in all Canadian jurisdictions. Complying with the OHS system can not only assist an employer in avoiding unnecessary liability but can also save lives. Learn more in UKG’s Occupational Health and Safety Guide for Canadian Employers.