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March 1, 2017

Working from Home: Six Issues for Employers to Consider in Telecommuting Policies

Employers who are looking to modernize their workplace may view telecommuting or working from home arrangements as an effective way to increase flexibility for employees while reducing the company’s bottom line. These types of arrangements generally allow employees to work remotely from home or from some other location. They can be beneficial for both employers and employees; however, before giving these types of arrangements the green light, employers should carefully consider whether it is the right move for their workplace.

Employers who are interested in implementing this kind of arrangement in their workplace should consider creating a telecommuting policy. Creating a telecommuting policy is a great way to address the unique issues that may arise during the course of this increasingly popular working arrangement. In that vein, we’ve highlighted some of the key issues to consider when creating a telecommuting policy:

1.      Preliminary Eligibility

In creating a telecommuting policy, employers should consider whether there ought to be any preliminary eligibility criteria that employees must meet in order to telecommute. Eligibility may be limited to employees who are able to maintain a certain level of  performance,  hold a certain type of position, or have a specific type of home office set up.  Setting out objective eligibility requirements provides clear expectations for employees who might be interested in these kinds of arrangements.

While providing preliminary eligibility requirements can be useful, employers who plan to retain the discretion to approve or deny these types of arrangements should state so clearly in the policy. In doing so, employers may also want to outline the procedure for employees to follow if they wish to be approved for telecommuting, and set out who will ultimately decide whether the arrangement will be implemented.

It is worth noting that despite any preliminary eligibility criteria set out in the policy, exceptions may need to be made for employees who request a telecommuting arrangement as a form of accommodation. Any decisions in this regard should be made in accordance with the Human Rights Code (the “Code”).

2.      Performance of Work

While it may seem obvious that employees who telecommute are expected to continue to perform the duties of the position, setting out these expectations in a telecommuting policy avoids any uncertainty in this regard.

For example, while an employee’s hours of work may already be set out in their employment contract, employers may want to confirm the number of hours a telecommuting employee is expected to work per day and the time frame for when those hours should be worked in the policy. As workers’ compensation legislation remains applicable to employees who telecommute, employers may find it beneficial to clearly delineate hours of work, including timing for meal breaks, as it may assist in resolving disputes over whether an injury occurred during the course of employment.

Alternatively, employers may choose to implement a more flexible policy which allows telecommuting employees to choose their own working hours, so long as they maintain the total number of expected hours per day. Either way, it is a good idea to set out your expectations clearly.

In addition to setting out hours of work in the policy, it is also beneficial to reaffirm expectations for work productivity, quality of work, and reporting requirements for employees who telecommute.

3.      The Work Space

A telecommuting policy should outline any requirements for the physical work space of telecommuting employees. This could include measures to ensure that a work space is compliant with any applicable health and safety legislation and municipal building code requirements. It is also a good place to include any restrictions on who is permitted to access the work space and where an employee is permitted to telecommute i.e. only in their own home, within a certain geographic area, or anywhere they have internet access.

4.      Insurance and Liability

To avoid any confusion should the issue arise, employers should consider including a section in the telecommuting policy that addresses any insurance requirements. This section may include specifications for home insurance coverage requirements, address how incidents of theft or damage to company property should be handled, and outline who will be responsible for any injuries to third parties that occur within the work space. 

5.      Dependant Care

Telecommuting arrangements can offer employees some flexibility in caring for dependants who require care during working hours for a short period of time, for example due to an acute illness or injury. However, employers may want to consider whether telecommuting arrangements are appropriate for employees who plan to care for dependants for an extended period of time while telecommuting. Restrictions on providing dependant care while telecommuting can be included in the telecommuting policy. However, employers should consider the specific circumstances of employees, as some may require accommodation in accordance with the Code

6.      Changes and Cancellations

A telecommuting policy should contemplate how and when a telecommuting arrangement can be cancelled or amended. Including a provision that explicitly states that the company may change or cancel a telecommuting arrangement reiterates that telecommuting is a benefit and not a right. It may also mitigate the risk that cancelling a telecommuting arrangement will be viewed as making a fundamental change to an employee’s position.

Final Thoughts

The above list serves as a guideline for employers who are considering implementing a telecommuting arrangement. Although non-exhaustive, the list highlights some of the key issues that employers should consider when deciding whether to incorporate these types of arrangements into the workplace. For employers who do decide to implement this type of working arrangement, having a comprehensive policy in place that addresses the relevant issues and clarifies expectations will serve to maximize the benefits and minimize the liabilities of telecommuting.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

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