Remote workers - out of sight shouldn’t be out of mind

While I appreciate that COVID-19 has become a dirty word, there are many lessons that we can (and should) take away from that roughly 2.5-year period.

For example, the exponential increase in remote work arrangements came about from the pandemic and remote work is not going away. I personally think this is great, if remote arrangements engender trust and are used appropriately.

When I discuss remote work - or what was formerly known as “telecommuting” - I mean an arrangement where workers perform their job duties outside of a traditional office setting, typically from home. While this arrangement offers flexibility and convenience, it also raises important questions about the administration of workplace occupational health and safety (OHS) and workers' compensation (WCB) coverage.

In British Columbia, as in many jurisdictions, OHS and workers’ compensation issues are dealt with conjointly by one government entity. In BC, WorkSafeBC is the provincial agency responsible for ensuring workplace safety and administering the WCB system.

Workers’ compensation

Remote workers, like those in brick-and-mortar offices, stores or other workplaces, fall squarely within the oversight and requirements of WCB legislation. However, the experience of the last few years seems to indicate that many remote workers are forgotten (or are an afterthought) when considering and applying OHS processes. This situation creates a critical potential blind spot (read: liability) for employers.

To clarify, OHS requirements and the WCB system apply equally to remote workers as those working in the office or other worksite. Therefore, out of sight should never be out of mind!

If a remote worker is carrying out duties from home and suffers an injury or illness that is deemed to have arisen out of and was in the course of employment, then that is a WCB claim that needs to be reported by both the employee and the employer. The employee is then generally entitled to the same benefits as those working on-site.

A notable example of this situation arose in September 2021 when an Air Canada call centre employee who was working from her home fell down stairs mere moments after she logged off work for her lunch break. The Quebec Administrative Labour Court (OHS Division) in Air Canada and Gentile-Patti, 2021 QCTAT 5829 determined that the worker had suffered an unforeseen and sudden event during the course of her work and, therefore, it was deemed an occupational injury.

Workplace injury

Determining whether a workplace injury occurred in a remote setting can be complex, as the boundaries between work and personal activities can be blurred. Remote work injuries, for example, often require asking many questions such as the following:

• Was the worker performing duties for the employer when the injury occurred (i.e. a wrist injury when typing, while going to the kitchen to get a snack, walking down their home stairs to get mail, etc.)?
• Did the injury occur during the employee’s work time?
• Did the injury occur in the employee’s “workplace” (i.e. home office, stairs, etc.)?
• What precautions were in place to ensure worker safety in the remote workplace?

While the above discussion focusses on workplace injuries, remote workers can also be exposed to workplace hazards, bullying and harassment and other concerns that fall within OHS. As such, employers’ obligations to prevent and address these types of issues are just as weighty whether the workers are working at the workplace premises or are working remotely.

While OHS requirements will vary from province to province, the following steps will help to mitigate risk and liability, increase compliance with OHS requirements for remote workers, and help keep your organizational culture strong:

• Ensure that your policies (including bullying and harassment/respectful workplace/working alone, etc.) address remote workers and any specific aspects of their work that need addressing.
• Ensure that your remote workers are included in workplace training. For example, in BC it is mandatory for employers to have a bullying and harassment policy and to train workers on the policy. It is critical to ensure that everyone gets trained, even if they work outside of the office or workplace.
• Conduct timely risk assessments to identify potential hazards in the home office environment. Employers can provide checklists or guidelines to help remote workers assess their workspace for safety risks.
• Check in with remote workers regularly to ensure their health and welfare. This is important from an OHS perspective but also ensures that your remote staff feel connected to the organization.
• Include remote workers in work social events. If there are social events like the annual picnic, holiday parties, or retirement events, make sure that your remote workers are included and accepted. If not, there is a much higher risk that they will feel isolated and disconnected.
• Make sure that remote workers are aware of their obligation to maintain a suitable and safe remote work environment. Remote workers must also be advised to promptly notify their employer of any accidents, injuries or incidents.
• Consider which items in their remote workplace workers use for business but pay for themselves, and assess whether the business should help with those costs. For example, employees frequently use their personal internet, phone and utilities for work but pay for them out of pocket each month. Under BC employment standards legislation, employees cannot be forced to cover business expenses. Therefore, many employers offer a monthly allowance to remote workers to cover the business portion of such expenses (which is very well-received by employees).

Remote workers

As remote work continues to shape the modern workforce, it is increasingly important to understand and consider how workers' compensation and OHS issues affect your remote workers.

By proactively including remote workers in those considerations, employers will create safer remote workplaces, minimize liability and help remote staff feel more included in the organizational culture.

Richard B. Johnson is co-founder and partner at Ascent Employment Law in Vancouver.