With the most recent stay-at-home order, where the provincial government is strongly encouraging those that can, to work remotely for at least the rest of the month, many employers may be wondering whether to reduce to writing any work from home agreement or rules and expectations with respect to work from home (WFH).

While an entirely new agreement for a temporary measure is not necessary, it is a good idea to revise existing policies or implement new ones that deal with work from home issues. This way, a universal approach can be applied to all employees rather than dealing with situations on a case-by-case basis, which can lead to problems such as claims of discrimination or favouritism.

As for what the work from home policy should contain, the first thing any policy should address is identifying its scope: are there certain employees that are excluded from WFH and the application of the policy? There may be employees where the nature of their work demands in-person attendance, and these positions should be identified.

The temporal scope should be addressed as well: is the work from home agreement in place as a temporary measure to COVID-19 or is the office shifting to remote work?

Likely one of the most important aspects of a work from home agreement will be rules around hours of work. Are employees required to record their hours of work? This is particularly important for employees who are eligible to receive overtime pay. On the topic of overtime, the policy should address any procedures related to overtime, such as whether an employee is expected to seek approval prior to working overtime.

Another issue a work from home policy should address is exclusivity. Employees are held to an implied duty of good faith and fidelity. As part of this duty, employees are expected to act honestly and faithfully to their employers which should preclude an employee from collecting a salary from the employer while they are engaging in non-work-related activities, particularly furthering their own interests or side businesses.

Having said that, employers must turn their mind to employees who may have responsibilities at home which may compete for the employee’s attention, i.e. family responsibilities. Thus, while we still recommend setting expectations that apply to everyone in a work from home policy, employers should remain flexible and be prepared to accommodate employees, particularly those that are protected under human rights legislation.

Whitten & Lublin, Employment Lawyers is one of Canada’s Premiere Workplace Law Firms. If you would like insight and advice on your existing policies, or you are considering implementing new policies in response to the changing legal landscape, please contact us online or by phone at 416-640-2667.

Author: Nadia Halum