CALGARY EMPLOYMENT LAWYERS on What are the employment law implications of employees working remotely

What are the employment law implications of employees working remotely?

The COVID-19 pandemic made remote work a necessity for most businesses, and it appears it’s here to stay. A vast majority of new remote working employees would like to work at least half of their hours from home, according to a recent survey by Statistics Canada.

But what are the employment law implications of employees working remotely? What do employers need to know if they’re going to allow employees to work from home permanently? And what if employees work from a different province?

What law governs a remote worker’s employment?

Each province has its own employment law. Generally, the employment law of the province in which the employee lives and works is the governing authority. However, some provincial legislation applies to employees who work outside their home province.

The employer does not have a right to choose which legislation to apply to the employment relationship. Employment contracts cannot employ a choice of law clause to override the provincial law of the employee’s primary residence.

For non-unionized employees working in Alberta, the Employment Standards Code is the governing employment law. The Labour Relations Code applies to unionized Alberta employees. The Alberta Human Rights Act and the Occupational Health and Safety Act also apply to Alberta employment.

What employment standards must be considered for remote workers?

There are many considerations for employing remote workers. In addition to health and safety obligations, responsibility for equipment, privacy and intellectual property issues, and tax implications (all covered below), of primary importance is the issue of work time.

When working from home, the line between work time and personal time can easily (and unintentionally) become blurred. Employers must set clear expectations and processes to ensure workers are paid appropriately for their work and to foster a productive work environment.

Guidelines for remote workers should address things like:

• • Work time expectations – required hours of work each day
  • Employee availability – normal hours with normal break-time provisions or a more flexible schedule
  • Record keeping – How will work time and productivity be tracked?

• Calling in sick
• Overtime – approval, tracking, and payment
• Work location – Is the employee limited to working from home, or is working in a coffee shop, library, or vacation spot permitted?
• Child care – Are childcare arrangements required to ensure a distraction-free environment?

Health & Safety Obligations

What are an employer’s health and safety obligations to remote employees? Occupational health and safety standards require employers to maintain a safe workplace. The definition of “workplace” is so vague that the extent of the employer’s obligation to remote working employees is unclear.

Employers have a general duty to take every reasonable step to protect their employees, so it’s sensible to apply existing health and safety policies to remote working whenever possible. This includes working with remote employees to mitigate ergonomic risks.

It is advisable to consult with an employment lawyer about your legal health and safety obligations.

Responsibility for Equipment

There is no legislation to dictate who is responsible for buying and maintaining remote employee’s equipment, so employers need to consider policies for this, including:

• What is the employee expected to provide for their at-home workspace?
• Who is responsible for buying and maintaining equipment, such as a desk, internet connection, computer, and software accounts?
• If the employee is responsible for buying equipment, is approval required before purchase?
• What expenses can be reimbursed and is there a limit? What documentation is required for reimbursement?

If an employee will work both in the office and remotely, the employer needs policies addressing which office equipment and supplies can be taken home.

Technology, Privacy and Intellectual Property

What technology, privacy and intellectual property issues may arise from remote work situations?

Privacy and confidentiality issues can occur in remote working situations. Employers should address this in company policies and clearly communicate that all in-office privacy or intellectual property policies apply in remote environments as well.

Employers can direct employees to take reasonable steps to protect the security and confidentiality of all work-related information. Additional guidelines should also address:

• Are employees permitted to bring home company documents or other property?
• How are employees expected to protect data and other company information?
• Are employees permitted to print documents at home or save files on personal devices?
• Who is responsible for damages or losses of personal devices or equipment used in remote work situations?
• Are there licensing agreements owned or held by the company? If so, how do they affect the employee?

Remote employees should be required to report security breaches or the disclosure of confidential information immediately. Employers should establish reporting protocols for this.

What are the tax implications when an employee works from another province?

To determine the amount of tax to withhold from an employee’s pay, employers must look at where the employee “reports for work”. If an employee is not required to report for work in person at the employer’s establishment, taxes are based on the location of the office from which an employee gets paid.

Corporate tax regulations complicate things even further. Because they differ from province to province, employers must clarify which provincial regulations to follow. Typically, corporate tax is based on the location of the employer’s “permanent establishment”, but there are exceptions that arise with remote workers who have “general authority to contract” for the employer.

Tax implications are complex when an employee works from another province, so we recommend consulting with an employment lawyer and your accountant.

How are worker’s compensation premiums affected by remote work?

Payment of premiums and workers’ compensation is regulated by the Interjurisdictional Agreement on Workers’ Compensation across all provinces. Workers’ compensation premiums are payable in the province where the employee performs the work.

Work From Home Policies & Employment Contracts

Remote working should definitely be addressed in employment contracts and policies. Clear contracts and policies can prevent common problems presented by a remote workforce. When both the employer and the employee understand their obligations, a remote working relationship can be successful.

We’ve already talked about some issues to address in a work from home policy, but there are many more details an employer should consider and include in the policy or employment contract, such as when and how the work from home policy can be implemented, cancelled, or amended.

Permission to work remotely should be considered a benefit to the employee, not an entitlement. The employment contract should specify and explain that the employer can change or revoke the parameters and policies around remote work at any time and for any reason.

Remote Work Employment Lawyer Consultation

The legal implications of remote working employees can become complex. Crafting effective work-from-home policies and employment contracts can be overwhelming. The employment lawyers at Osuji & Smith are experienced and able to help you address each issue that arises from remote work situations. Consult with one of our employment lawyers today.