As the COVID-19 pandemic drags on, working from home or telecommuting has become a widespread practice for many workers in Ontario. As people and workplaces mobilized to contain COVID-19, a greater number of workforces began to merge their home life with their work life. For some, this was an easy transition; for others, combining child-care or family life with work life was less than ideal.
Although working from home was viewed as temporary, many now view remote work as a regular part of the modern work experience. As remote work becomes a bedrock practice, questions will need to be asked and answered about the health and safety protections owed to remote work staff.
The Normal Rules:
In Ontario, the health and safety obligations for provincially regulated employers are present in a series of loosely connected systems and laws. Although each of these systems offers protections, there are gaps in how far those rights extend for at-home work. This has led to many questions and demands for further clarification from governments and courts.
Occupational Health and Safety Act Protections for Remote Work:
One of the key places to review an employer’s health and safety obligations in Ontario falls under the Occupational Health and Safety Act, 1990. Created in 1990, this law sets out many of an employer’s key responsibilities on the safety of their employees. Strangely, and perhaps because it predates the invention of dial-up, the law states that it simply does not apply to work performed by an owner or occupant within “a private residence”.
Based on the letter of the law, the Occupational Health and Safety Act seems not to apply to a home office or private home. If this thinking is correct, it spells trouble for many Ontario workers; among the concerns, key provisions against bullying or harassment would be useless for remote work. Similarly, employers would have no obligations in respect of maintaining safe and functional equipment for use by staff who are working from home.
Unfortunately, since the creation of the legislation and the start of the COVID-19 pandemic, few if any cases have addressed the application of the Occupational Health and Safety Act to home office employees.
Workers Compensation & Working from Home:
Unlike the Occupational Health and Safety Act, the Workplace Safety and Insurance Board (“WSIB”) and the Workplace Safety and Insurance Act, 1997 do appear to protect employees who are working from home or from a mobile office. WSIB Policy clearly sets out that whether an accident occurs in the course of employment depends on the criteria of: 1) Place; 2) Time; and 3) Activity. In that sense, whether an accident is work-related is dependent on either the location of the accident, the time that it takes place, or the activity that the injured worker was performing at the time of the injury. As a result, a lifting injury from a home office should be covered under the WSIB as long as it was driven in some way by the worker’s duties.
Outside of physical injuries, the WSIB also keeps policies on mental health injuries, such as those related to harassment or bullying. Although the policies do not reference online bullying, the WSIB policy on Chronic Mental Stress extends coverage to the negative health impacts that can arise as a result of bullying or harassment. As a result, whether an injury occurs in a home or remote office should not affect entitlement under the WSIB like it would under the Occupational Health and Safety Act.
Notably, a recent decision from Quebec’s Administrative Labour Tribunal found that an injury suffered at home during COVID-19 was a compensable work injury. To reach this conclusion, the Tribunal considered several elements similar to WSIB policy, including where the incident happened and the connection of the incident to the individual’s work.
Although not enforceable in Ontario, the Quebec Tribunal decision shows that the key criteria considered in Ontario under the WSIB could easily be applied to cover injuries that might happen within a home or remote office.
Human Rights and Working from Home:
Provincially regulated employees are also offered some protection at work by way of the Ontario Human Rights Code, 1990. The Human Rights Code, which is designed to protect an individual’s human rights from violations by organizations and private employers includes protections for harassment and bullying that is targeted at an individual’s personal characteristics. These protections insulate employees from the type of bullying that is based on core characteristics such as race, gender, and religious beliefs, whether that bullying is done in person or online.
By carving out additional protections for bullying and harassment, the Human Rights Code, helps to cover the gaps for at-home work that seem to exist under the Occupational Health and Safety Act. Unfortunately, the Human Rights Code, only offers protections for harassment and bullying motivated by discriminatory intent but does little to address more general health and safety obligations.
Tangled Web of Telecommuting:
The loose connections between the different systems and laws in Ontario for worker health and safety lead to real questions about the extent to which at remote work staff are protected when it comes to their at home work environments.
The Occupational Health and Safety Act says that it won’t apply to remote work. On the other hand, the protections that appear to come out of the WSIB create a significant incentive for employers to continue to monitor and promote employee health and safety, even while working from home. On the question of harassment and bullying, the protections that apply to discriminatory forms of harassment or bullying also leave significant motivations for employers to properly address and investigate complaints of harassing or unsafe work environments, even if they are virtual.
To best navigate through the world of at-home work, employees should continue to express themselves and their health and safety concerns to employers. They should continue to assert their rights as though all standard laws apply. Laws that are slow to adapt may need to be pushed but sooner or later they will be forced to catch up.
If you have any questions about your health and safety rights or the policies in your workplace, please feel free to contact the lawyers at McMahon Molyneaux Henriquez to assist you in the navigation of these issues.
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