As the worst of the Pandemic moves further into our rearview mirror, more employers are asking their employees to return to the office either five days a week or in a hybrid model.

Who Can Work Remotely?

Not all employees are capable of working from home. It will depend on the nature of the employment relationship. Some employment contracts for office employees may still require in-person attendance based on the duties they are supposed to carry out (i.e., meeting with clients or organizing office materials).

In many cases, the employment contract will also specify where the workplace location is. Since the emergency aspect of the Pandemic has largely ended, employees that worked remotely may have been recalled into the office. Employers retain the right to recall their employees.

However, should an employer continue to allow its employees to work from home for the foreseeable future, it may not be able to call them back in at a later date. Employers that continue to enable employees to work remotely long after the emergency phase of the Pandemic may be implicitly altering the terms of the employment contract. Thus, they may lose the right to recall the employees back to the office.

Where Can Employees Work Remotely?

It was not uncommon to see employees move farther away from their in-office work location during the Pandemic. Since employees were not required to work in person, they could work remotely from a distance. For some, this meant moving away from the big city to the suburbs. For others, this may have meant moving to a different city, province or even country.

Employers and employees should be conscious of this moving forward. Employment law may differ across various jurisdictions. For example, Alberta employment standards or California employment standards differ from Ontario employment standards. If an employee is working in another jurisdiction, the employer could be bound by those laws. Employers and employees should also be aware of this for tax issues, human rights, and other purposes.

Moving forward, businesses should address permitted work locations in the employment contract to avoid such issues with remote employees if they do not do so already.

Monitoring Remote Workers

Ontario recently introduced new legislation on the electronic monitoring of employees (which you can read more about here). Organizations with 25 or more employees must now have a written policy on monitoring employees electronically. This includes:

  • A description of how the employees are monitored;
  • In what circumstances an employee may be monitored; and
  • The purposes for which the information obtained through electronic monitoring may be used.

Even if the employer is not required to provide a written policy to its employees, it should consider doing so anyway.

With remote work comes the potential for more time theft. This means employees are doing personal things (i.e., watching Netflix) during the hours they are supposed to be working. Employees should be aware moving forward that they may be monitored, even while at home (while using a work laptop, for example). A recent BC Tribunal decision actually required a remote employee to pay their employer $2,600 for time theft which was discovered via electronic monitoring software.

Main Takeaway

There are many aspects employers and employees should take into account when deciding if remote work is right for them. As discussed, not even all types of office employees can work from home. Moreover, both parties should also be aware of jurisdictional issues if the remote employee moves to another province or country. Lastly, employees should be aware of the new legislation on electronic monitoring. Even while working remotely, employees engaging in time theft can be caught and potentially be liable.

For further reading and information on the remote work issue, click here.