During the COVID-19 pandemic, many businesses required their employees to work from home due to the restrictions put in place by various levels of government. Due to the uncertainty of the situation, not many employers even considered making a remote work policy. As there are noted benefits of remote work, even as employees can now come back to the workplace (see our previous blog for more on this matter), now is the best time for employers to consider implementing a remote work policy.

Remote work policies have many benefits. A remote work policy establishes the ground rules for remote/hybrid work arrangements. Employers have a lot of flexibility with what they can put into a remote work policy. Essentially, remote work policies ensure that the workplace runs smoothly, even when not all of the employees are present. This is because a remote work policy reduces the confusion about how remote work is done. The policy also ensures that everyone who is doing remote work gets similar treatment, reducing the chance of conflict.

What should/could be in a remote work policy

A remote work policy should set out who will be eligible to do remote/hybrid work arrangements. An employer can state specific employees who can do remote work in the policy. However, the decision regarding who can do remote work cannot be based on a discriminatory ground (race, age, gender, etc.). The employer's remote work policy should also establish a process for employees who want to be approved to work remotely. The process could identify who can approve a remote work request and establish a form that employees will have to fill out. That form can provide the needed information for the employer to properly assess whether a particular employee can work from home. Once it is established that an employee can work remotely, the employer may want them to sign a remote work agreement that sets out the terms of their remote work arrangement, in a way that is more specific than the policy, to address the unique aspects of their job.

A remote work policy could establish where an employee can remotely work. Most employers will want their employees to work in the same province as their office. This is because, when determining jurisdiction, courts look at where the work was done. In a case where an Ontario employer's employee works remotely from British Columbia, a court will likely establish that the employee's workplace is in British Colombia. That would make the employer liable when the Ontario employment standards do not meet the British Columbia employment standards. Such a situation would also require an employer to pay taxes to a different jurisdiction than normal. An employer's remote work policy could also dictate the conditions that their employees are expected to work in. For example, if employees work with lots of confidential information, the employer could add the requirement that employees do their remote work in a private workspace, like a private home office.

The remote work policy can also set out what the employer will provide employees when they work remotely. For example, the employer could provide company-supplied laptops. If the employer offers technology, they may want a provision that states what the employees will do if there is a technological issue that they cannot personally fix. The employer could also offer reimbursement for some of the employee's electricity and internet fees. However, the employer may also want to specify what they will not provide to the employee. This could include an expectation that employees will provide their own desks and chairs while working remotely.

As employers are still responsible for remote workers' health and safety, it is a good idea for employers to have a health and safety provision in their remote work policy. This can be as simple as asking employees to refer to their previously established health and safety policy. However, due to the unique nature of remote work, the employer may want to expand the policy provision further. An employer can establish things such as what an employee will do if they get injured while working remotely.

An employer should include a way to end the remote work arrangement in their remote work policy. An ending provision can be helpful when the workload requires the employee to be in the office more frequently. It is also a good provision to have because, without it, there is a risk that the remote work arrangement becomes legally permanent. If an employer tries to end a remote work arrangement, without a provision in their remote work policy stating how it will end, they could be held liable for constructive dismissal.

How Suzanne Desrosiers Professional Corporation can help

Suzanne Desrosiers Professional Corporation can help you draft a remote work policy. We can help create a policy that fits with the unique nature of your workplace. We can also help draft remote work agreements that set your remote work expectations of specific employees. To reach us, you can call us at 705-268-6492 or email us at info@sdlawtimmins.com.