Employees face ‘a whole new ball game’ working from home

Working from home brings with it a learning curve and new challenges that can affect employment rights, says Toronto employment lawyer Ellen Low.

A vast number of people are settling into home offices as the shift to working remotely that was forced by the coronavirus shutdown appears to be a more permanent reality.

Low, principal of Ellen Low Employment Law, says it is essential for workers and their employers to understand their rights as they grapple with the changing employment landscape.

“It can be really concerning. There are all sorts of protections for employees about balancing work and home life. But this is an entirely new ball game,” she tells LegalMattersCanada.ca. “Everyone is trying to balance these different rights. What workers should do is be forthright with the employer and the employer should be forthright with them with respect to expectations.”

Restrictions easing

With pandemic restrictions easing and people returning to work, Low says many could be faced with tough decisions when it comes to balancing their professional and personal lives.

For example, some would prefer to return to the workplace, she notes, which can present a problem.

“That is something the employee would have to canvass with the employer,” Low says. “The question in my mind becomes if the employee wishes to return to the office but there is, in fact, no office, is that a breach of the employment contract?”

For employees working from home on a permanent basis, there are issues to deal with that may not have required attention when the pandemic first halted the economy, she explains.

Questions such as who pays for insurance on company-supplied equipment or for any expenses incurred while working from home.

“If you are being asked, for example, to pay for your own internet to be able to work from home you may want to ask your employer whether they are prepared to issue a T2200, which would allow you to write off certain business expenses,” says Low.

Conditions of employment

According to Revenue Canada a T2200 Declaration of Conditions of Employment “is completed by the employer to certify that an employee is required to work from home and that any employment expenses not reimbursed by the employer may be claimed on their annual tax return.”

She says those working remotely should have a clear understanding of what is expected.

“There have to be some parameters. Ideally, there should be some discussion with the employee with respect to working from home such as what hours are expected to be put in and when those hours are put in,” Low says. “Is there a policy or guidelines about juggling family obligations? Is there a policy or guideline for things such as virtual meetings?”

She says the issue of video teleconferencing can be tricky.

“Do you have to be on video constantly or can you participate by phone? It’s a bigger deal to being on screen all the time, trying to keep your children off the camera than perhaps being on a phone call,” Low says. “Because it is a new norm there really ought to be guidelines and policies coming out of the employer with respect to expectations.”

She points to a case in California where a woman has filed a lawsuit against her former employer, alleging she was dismissed after being repeatedly told to keep her children quiet during work calls.

Business call

For many, it can be difficult to maintain complete silence while dealing with a business call at home, Low says.

“Some people don’t have a home office. They have a kitchen table and children running around and a spouse also working from home,” she says. “Unless you’ve got a permanent caregiver in your bubble you do not have childcare and you have a legal responsibility to take care of your children. But you’ve also got the expectation that you are going to be at work working 9-5 and possibly on calls from 9-5. There needs to be a balancing act.”

Low says workers have protections in the Ontario Human Rights Code when it comes to life beyond work.

“Employees who ask for family status accommodation are entitled to have that accommodation request taken seriously,” she says. “As far as I am concerned, there is a serious risk with what could be a vast preponderance of almost gender discrimination. It would be much the same way if you are discriminated against because you are pregnant.

“Family status is complicated but usually if you need to take care of a minor or a dependent and you have a legal obligation to do so you can ask for accommodation in the workplace with respect to things such as scheduling,” Low adds.

Salary is also another issue gaining attention as some companies have contemplated compensation reductions for those who do business from home.

Pay adjustment

According to one news report, some remote employees have been told to expect their pay to be adjusted.

“The most insidious question is can your employer cut your wages because you are working from home and that’s a more complicated question because to some degree it deals with fundamental aspects of employment, which are wages and how much the employee is entitled to earn,” says Low. “But the employer can make small changes to the employee’s contract including compensation.

“In my view, the question would be how much is the discount that is to be applied,” she adds. “If it is a major change, say 25 per cent, that may not something the employee has to accept.”

Low says there are “safety nets” provided by the human rights code and Ontario’s Employment Standards Act, adding the evolving work environment may necessitate new protections and updated guidelines.

“We’ve witnessed some changes already and I wouldn’t be surprised if we start seeing some new jurisprudence either at a human rights tribunal or the civil courts about reasonable expectation of privacy while working remotely, for example,” she says. “I do see more family status issues coming up because parents are in a pretty impossible position.

“Ultimately it makes sense to seek advice when you have questions.”

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