If you’re working from home, do you know what your rights as an employee are?
We spoke with Guelph employment lawyer, Peter A. McSherry, about workers’ entitlements, potential issues and strategies to protect your health and wellbeing.
Q: What are an employee’s rights when working from home? Do they differ from when you are working onsite at the office?
A: There’s no differentiation between the rights in the Employment Standards Act whether you work at home or at your employer’s place of business. You’re entitled to all your breaks and your hours of work provisions.
There is one aspect that might be important. If your employer is requiring you to work from home, there may be a heightened need for accommodation of family status. Family status discrimination under the Ontario Human Rights Code would come into play.
Q: What might employees who are working from home not be aware of but is important to know?
A: Most likely it would be their entitlements to overtime and breaks. There may be health and safety implications that come out of it. I would suspect that given the way that a lot of people have been required to work from home, without a lot of opportunity for advanced planning, that people may find themselves now going onto a year and working in work settings that are not particularly well ergonomically planned. People may be starting to feel the effects of that; that may be wearing on them now. They may well be feeling the physical strain of working under poorly ergonomically designed workplaces.
Q: Have employers, by and large, been aware—and respectful—of their employees’ rights as they work from home?
A: My experience would suggest that some employers are and some aren’t. Oftentimes boundaries are getting blurred. Customers and clients are expecting people to respond to emails and requests, day and night. Before, the expectation was that businesses would close at 5 o’clock and you’d hear back the next day; many people no longer have that expectation.
Q: What kinds of issues have you seen arise over the past year?
A: A big issue has to do with the requirements for home schooling, with people having their children at home for prolonged periods of time and whether there’s a need to be at home to look after children vs. employers wanting people to be back at work.
The other is Infectious Disease Emergency Leave; for certain industries and people that’s definitely been the one that people have come to talk to me the most about. Every time those protections are just about to come to an end there’s a frenzy of activity, particularly when the interplay between the education systems and working lives come into conflict.
Q: What advice do you have for employees who continue to work from home right now?
A: Remember to look after your health, to make sure that you have a safe work environment for your physical body, and to set appropriate boundaries for your mental wellbeing, and your family’s wellbeing.
Also, to realize that Covid appears to be a marathon and not a sprint.
Q: Obviously there’s still some uncertainty about what our work lives will look like in the future. Might you have any predictions about how things will look workwise in the coming months as we begin to slowly transition out of restrictions?
A: We may well see that there’s a lot of good things that have come out of the Covid restrictions and how people work. I think that for people who require protections or accommodations under the Ontario Human Rights Code, whether for medical reasons, physical disabilities or family requirements, and who feel they needed to work from home to protect those rights, Covid has given a real-world example that this can indeed be done. Employers who may have been very resistant to this before now know that it certainly can be done and they have a much better idea of the limitations.
I also think there’s greater flexibility for people in terms of providing services. It can improve work-life balance in the sense that when you’re trying to access services you don’t need to allow so much travel time, so there are some advantages. Obviously, you have to be very careful about remote work; it does make it tougher to deal with teams. The personal interactions with co-workers can become strained. There’s possible conflict where tones and meanings are lost because people are working digitally and not necessarily catching body language or humour in the way that they’re intended, and it may lead to frayed relations. It also makes it more difficult for people to learn from their co-workers—it’s not impossible, but it’s definitely more difficult.
Q: Many have moved out of big cities in the past year. What happens when they’re called back into work? So many have taken for granted that they can continue to work remotely, but is this a reasonable assumption?
A: Yes, many have made that decision without ever really getting a sense that they would be able to, that it would be supported long-term. It is reasonable for an employer to make a workplace rule requiring attendance at their physical office when Covid restrictions have passed. There’s no reason an employer would not be able to say to somebody, you’re required to be here five days a week and if you’ve moved yourself remotely away to make that impossible, that would be your burden. Now that may well be softened to a certain extent if there’s human rights issues that may arise that require accommodation, for instance disabilities or other reasons. But absent those, just because you’ve decided to buy a larger house in a more remote area that’s not conducive to commuting would not in and of itself create an obligation for the employer to accommodate you.
Now having said that, employers may well decide that they would like to free themselves of some real estate costs of supplying offices and may be quite open to having employees work remotely—quite frankly they may want employees to work remotely. Certainly in places where they feel that their losses of productivity have been negligible or they have seen increases in productivity, there may be employers who want people to work from home, just as there are many that would prefer to physically attend an office. I think the potential for conflict goes back and forth on that. There wouldn’t be one correct answer for all businesses.
For more information, visit Peter A. McSherry Law Office or call 519-821-5465 to book a consultation.