Remote work or hybrid work arrangements have become the norm for many office workers due to COVID-19, but what are the legal considerations?
I started this article perched on a kitchen chair watching snow fall outside of my in-laws’ house in Calgary. And I am finishing it relaxing on a couch in Sherwood Park. Usually, I work from my home office in Squamish, B.C., which I can do because the employment law firm I work at is fully remote.
Remote work, or hybrid work arrangements (a combination of office and remote work), have become the norm for many office workers because of the COVID-19 pandemic. While there are pros and cons to remote work from personal and business perspectives, this article will focus on several key legal considerations for remote workers.
1. Is there a Remote Work Policy or Agreement in place? What does it say?
Many employers have policies or individual agreements in place that apply to remote work arrangements. It is important to review any written confirmation of the remote work arrangement carefully to make sure you understand your rights and obligations (just like with the original employment contract).
Having clarity on what is expected is key. For example, does your employer care when you work or just how much you get done? How will your employer track your productivity? Do you need to be available at certain times for meetings? If a hybrid arrangement, how often do you have to come into the office? If you want to travel and work, is that allowed?
Remote work policies and agreements will also often speak to the other items mentioned in this article, such as who pays for and owns your home office equipment, and the health and safety expectations for a home office.
2. Who owns and pays for home office equipment?
At the beginning of the pandemic, many employees worked perched on kitchen chairs or hunched over their laptop in a kid’s playroom. As the pandemic dragged on, many employees needed to upgrade their remote workspace to ensure their health, safety, and effectiveness at work.
Just like in the office, your employer should make sure you have the tools needed to complete your work, including an ergonomic office set up. However, employees should remember that any equipment provided by the employer, or at the employer’s cost, belongs to the employer, not the employee. This may mean not being able to use a computer or phone for personal use, or that the employer is able to monitor those devices.
There are also differences where the work arrangement is voluntary, as opposed to being government mandated. For example, if you are allowed to work from your office, but have requested to continue working from home. If voluntary, it may be reasonable for your employer to require you to pay for more of the home office expenses because you could be working from the physical office and using the equipment provided there.
Employees may also want to get tax advice about home office expenditures and should make sure they know in advance what is or is not covered by their employer.
3. Is your remote workspace safe and private?
A home office is considered a “workplace” under most provincial health and safety legislation. Just like your usual workplace, you and your employer will have certain responsibilities to ensure the workplace is healthy and safe. This may include having an ergonomic assessment completed.
If you experience an injury while working from home (for example, developing wrist pain from typing), this may be a compensable claim. However, you must be prepared to prove it was caused because of work, not your non-work activities (for example, cutting yourself making a sandwich for lunch or videogaming with friends).
Your employer may be required to have regular check-ins with you and ask you to inspect your workplace for hazards. Employers will also often have specific health and safety policies in place for remote workers, which you should review.
In terms of privacy, if your work is confidential, you should consider whether you need to take certain steps to ensure your home office is secure. This might include using a locked filing cabinet for confidential documents and password-protecting devices.
4. Can my employer make me return to the office?
Generally speaking, yes. However, the answer to this question will depend on your specific circumstances. A few of the things impacting that assessment include:
- What does your employment contract say?
- What does your remote work agreement or policy say?
- Were you working remotely only because of the COVID-19 pandemic?
- Why is your employer requiring you to return to the office?
- Why are you unwilling to return to the office?
Your employer can always issue an ultimatum: return to the office or lose your job. The question then becomes whether you may be entitled to severance pay because of that decision, which will depend on the facts of your situation. Generally speaking, employees are entitled to notice or pay in lieu of notice of their termination. Employers may risk a constructive dismissal claim if they change a condition of your employment unilaterally.
Remember, employers can change conditions of your employment by providing notice. If an employer sends a letter to all remote workers on January 1, 2022 advising they are expected to return to full-time office work on June 1, 2022, it will be challenging for most employees to contest that.
However, employees can advocate for remote or hybrid work arrangements to stay permanent. And employers now more than ever before are open to those arrangements, particularly if you are an employee they want to keep.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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