Ted's Blog

Challenges of Working from Home

Writing for The Atlantic, Derek Thompson aptly states:

Even before the pandemic struck, remote work was accelerating . . . . Now, the coronavirus outbreak has triggered an anxious trial run for remote work at a grand scale. . . . What we learn in the next few months could help shape a future of work that might have been inevitable, with or without a once-in-a-century public-health crisis.

Quoting Hiten Shah, he goes on to say:

Right now, remote work isn’t working for most companies . . . . That’s because we spent the last 120 years learning how people can be productive in an office. The rise of the telegraph and the railroad in the late 19th century didn’t just give us retail, advertising, and mass distribution; it also gave us managerial capitalism–middle managers, top managers, and modern hierarchies at corporate headquarters. The 21st-century economy has already changed retail, advertising, and mass distribution. Perhaps inevitably it will also change work and management. . . . But first, companies will have to learn that remote work is different work.

He concludes:

. . . [A] pandemic is not an appropriate time to determine what kind of labor arrangement is optimally productive on a per-worker basis. It is rather a moment for companies to build out the kind of technology and culture that, when the economy is back to full force, could make remote work easier for those who want to take advantage of it . . . .

Given our new reality, I would like to offer a few broad considerations for those jumping into this breach.
At a minimum, employers should establish a “work from home” policy. By being proactive and creating a policy with clearly defined expectations, one can reduce issues and liability. Such a policy should address the following:

  1. Eligibility

  1. Determine what positions make sense to work remotely.
    • Consider what notice is required for employees to return to the office.
  2. Determine whether employees have health-related conditions that warrant consideration to work remotely.
  3. Consider whether an employee’s household may be put in danger if the employee is working outside the home–such as a spouse receiving cancer treatment.
  4. Consider human rights issues–employers cannot discriminate against employees on protected grounds.
    • In some circumstances, a legitimate consideration may arise when children are not able to go to school or a family member requires care.

  1. Availability

  1. Availability expectations should be outlined.
  2. Define when the employer expects employees to respond to others and the method of communication to be used.
  3. Ensure a system is in place for tracking and monitoring hours of work and expenses.
  4. Remember, employment standards legislation continues to apply.
    • Employers must pay employees for all time worked when working from home, including overtime, the same as if they were working at the office. An employer may restrict employees from working overtime, but must pay all overtime that they work.
    • Employees should stick to all applicable meal and rest break requirements when they are working from home.
    • Revisit your sick leave policy.
      • Provide a mechanism for how employees call in sick.
      • Provide for what happens when an employee is forced to quarantine or be tested.
      • Provide for specific precautions, such as refraining from non-essential travel, cross-border travel, etc.

  1. Productivity

  1. Specify how performance, productivity and quality of work will be managed and measured.
  2. Ensure employees and managers understand these measures and how they are being used.

  1. Environment

  1. Employers should attempt to provide the resources employees need to work from home effectively. Where that is not possible, they should evaluate the tools and equipment needed and decide whether and to what extent reimbursement for associated expenses may be necessary.
  2. Review and approve of the employee’s physical working environment. Employees should ensure their work area is free from hazards that might pose a danger.
  3. Employers have an obligation to accommodate employees with disabilities. That could include such equipment and accessories as would otherwise be provided in an office setting.
  4. Establish protocols for employees to follow when speaking with customers and clients by telephone or video conference. This should include expectations on dress code for video meetings.
  5. Specify what technical support will be offered to employees. Establish a plan of action for encountered difficulties.
  6. Review insurance policies to ensure coverage is adequate.
  7. Remember, occupational health and safety and workers’ compensation legislation continues to apply.

  1. Security

  1. Rules must be put in place to guarantee security of confidential information in every form.
  2. Company privacy policies should continue to apply while working from home.
  3. Employees should take reasonable steps to safeguard the security and confidentiality of company documents.
  4. Consider implementing/updating guidelines respecting:
    • whether employees are allowed to take home company documents or other property;
    • how and when employees safeguard information, including data stored on electronic equipment;
    • whether employees are permitted to print documents at home and whether they can save documents onto a personal computer or external storage device; and
    • reporting any security breaches or inadvertent disclosure of confidential information.
  5. Review policies respecting the extent to which there is an expectation of privacy over information shared and stored on devices being used to conduct company business.

  1. Modification

  1. Establish how and when the policy can be cancelled or amended.

Both employers and employees should review employment agreements, collective agreements and other policies to ensure the desired practice is clear. If changes are needed, negotiate them. Otherwise, constructive dismissal claims and grievances–in non-union and union workplaces, respectively–may be the result.