The COVID-19 pandemic proved to be a defining moment for the working world, especially in terms of the rapid deployment of remote work across several sectors. Five years after the pandemic, remote work remains a hot topic for employers.
Remote Work: A Right or a Privilege?
In Canada, except for a few laws that refer to working remotely,[1] there is currently no specific legislative framework governing remote work. As a result, when managing employees who work from home, employers must rely on standard workplace regulations and any collective agreements applicable to unionized employees.[2]
Generally, remote work is considered a privilege that an employer grants to accommodate an employee[3]—not a right.[4] This privilege arises from the employer’s right to manage and may therefore be revoked by the employer.
However, the situation may differ when the employment contract explicitly provides for remote work as a condition of employment. In certain circumstances, such as if the employer revokes the option of work remotely, the employer may face a claim for constructive dismissal,[5] particularly if it is shown that it was an essential condition of employment.[6]
What Are the Potential Consequences of Breaking Remote Work Policy?
Like in-person work, remote work is a working condition that also requires employees to comply with employer expectations. While it makes the commute easier, remote work requires self-discipline and regular attendance.
If the employment contract does not state that remote work is a condition of employment, then the employer may require the employee to attend the workplace. Employers are not required to pay employees who fail to follow the directive and may also take disciplinary action against them.[7]
Working remotely must not interfere with an employee’s attendance or undermine their duty of loyalty and good faith. Engaging in personal activities while working from home does not necessarily constitute time theft, but there is a limit that must not be crossed. When an employer is unaware that an employee lacks work and the employee spends their workday on personal activities, it is considered time theft and a breach of duty of loyalty, constituting serious misconduct that can lead to severe disciplinary actions, including dismissal.[8] On the other hand, less serious breaches are more likely to justify the employer’s use of progressive discipline. Depending on the circumstances, the employer may also revoke the privilege of working from home.
Performance Evaluations
In a remote work arrangement, standard performance management measures, adapted as required, still apply, such as one-on-one meetings with employees to assess the quality of their work.[9] However, how can employers monitor performance? Employers who monitor employees must ensure that their surveillance measures are proportionate and justified to achieve legitimate and necessary purposes. Lastly, the monitoring method used must be reasonable, necessary and intrude as little as possible[10] while respecting employees’ fundamental rights.
Are Employers Required to Accept a Medical Certificate Prescribing Remote Work?
If an employee provides a medical certificate requiring the employer to allow them to work from home, the employer is not automatically obliged to permit remote work. Although the request may be medically justified, employers are still required to consider whether they can provide such reasonable accommodation. In this type of situation, standard legal principles apply, and the employer will be required to accommodate the employee unless the requested accommodation constitutes an “undue hardship” for the employer. The undue hardship analysis will depend on several factors, such as the size of the business and its financial situation.
Our Recommendations
If you currently offer your employees the option to work remotely, or are considering doing so or making changes to your existing policy, it’s important to be aware of the legal implications. We recommend adopting a remote work policy to provide a clear framework for this arrangement, and to ensure that your employees are aware of your guidelines and expectations.
