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COVID-19 and Remote Working

On March 23, 2020, the Ontario provincial government ordered all non-essential businesses to close their doors for at least 14 days. Consequently, a significant proportion of the provincial workforce will be working remotely in the weeks to come.  With the urgency of the COVID-19 pandemic, many employers did not have time to implement policies before sending employees home. That does not mean that policies and guidelines cannot be introduced going forward. 

In this publication, we have prepared a checklist of considerations for remote working that employers can adapt to prepare policies and guidelines around remote working.   The publication is applicable to provincially regulated employees in Ontario but can be adapted for other jurisdictions.

Employees Family Care Responsibilities

For employees who cannot work from home due to their care responsibilities, they will likely be eligible for Infectious Disease Emergency Leave or for federally regulated employers, COVID-19 Leave.  They may also be eligible for Employment Insurance Benefits.  

  • Are your employees able to work from home, or do their care responsibilities prevent them from working productively?

  • Can you change an employee’s regular hours of work to accommodate their care responsibilities (reduced hours/change to core hours/staggered hours)?

Workstations and Health and Safety

Ideally, employees should have all the tools and equipment required to work remotely. Required equipment may include a private work area, a work desk, an ergonomic chair and a secure internet connection.  In the current circumstances, some flexibility may be required. Employees have a responsibility to maintain and secure all company equipment so it can be returned once the employee ceases working remotely.  Employer should also consider whether they will provide financial reimbursements for increased internet or phone usage resulting from employees working remotely. 

Under occupational health and safety legislation, employers have a duty to ensure the health and safety of all employees in the workplace; that duty may extend to the employee’s home if they are working remotely (although there is some debate). Under worker’s compensation legislation, remote employees who are injured while performing work duties can be compensated for their work-related illnesses or injuries (if their employer is covered by WSIB). 

  • Does the employee have a private work area? 

  • Does the employee have an ergonomic workstation and chair? 

  • Does the employee have a secure internet connection? 

  • Where equipment is provided to employees, is there an inventory of who has been assigned what equipment? 

  • Will the employer reimburse for costs of workstations, internet or phone access? 

  • Will the employer assess the suitability of the employee’s workstation?

  • Is there a process for employees to report workplace injuries?

Technological Requirements and Security

The most secure way for employees to work remotely is using a device provided and configured by the employer that has a direct connection to the employer’s network though a Virtual Private Network (VPN).   The use of a remote desktop protocol over the internet is not recommended. 

Employees should be encouraged to save all their work on the Company’s systems, not their personal devices.  If company configured devices have not been provided, consider sourcing secure cloud-based options for storing of company data.  Password protocols and multi-factor authentication processes are recommended for all access to company data.  

Training and education of employees around data security, phishing, and other cyber-security risks is recommended. 

Monitoring of employer systems is necessary to ensure data security.  All employers should have an IT and Communications Systems Policy that sets the ground rules for employee use of systems and for employee expectations of privacy.  Those policies should be revisited to determine whether any updates are required for remote work. 

Employers should also prepare contingency plans for maintaining company networks and providing support to employees working remotely. 

  • Confirm that employees have secure internet/wi-fi connections (not public wi-fi).

  • Determine whether secure access to company systems be established either directly with VPN or with cloud-based applications.

  • For employees using their own devices, consider a Bring Your Own Device policy.  For a discussion of BYOD policies and privacy considerations from the Office of the Privacy Commissioner of Canada click here. https://www.priv.gc.ca/en/privacy-topics/employers-and-employees/mobile-devices-and-online-services-at-work/gd_byod_201508/.

  • Consider “containerization” to keep personal and business data separate on an employee’s device.

  • Communicate to employees regarding cybersecurity and protecting company information and provide training to all employees on risks.

  • Establish and enforce password protocols.

  • Develop processes to prevent data leakage and to report any data breaches.

  • Develop protocols for data back ups.

  • Review of IT and Communications Systems policies for application to remote work.

Hours of Work and Employment Standards

Minimum standards obligations continue to apply to employees who are working remotely.  Ideally, employees will be able to maintain their same hours of work while working from home.  However, with many employees balancing work and care responsibilities, some flexibility may be necessary.  Here are the basics on hours of work obligations for employers that apply to employees who are not exempt:

  • Employees can only work more than 8 hours a day, or 48 hours in a week with a written agreement unless their regular shift is more than 8 hours per day.

  • Employees must have 11 consecutive hours free from work in each day.  If an employer permits employees to stagger their work hours throughout the day, the work should be completed within a 13 hour period to allow for the 11 hours off in each day. 

  • Employers must record hourly employees hours of work for each day.

  • Employers must record hours of work for salaried employees that are in excess of the applicable overtime threshold. 

  • Employees must be provided with 1 day off per week, or 2 days off in a two week period

  • Overtime must be paid for hours in excess of 44, or a lower threshold if a lower threshold has been established by the employer

  • Employees must have at least one 30 minute eating period after 5 hours of work or two periods that add up to 30 minutes within 5 hours of work.  Eating periods are not considered work time.  

In order to comply with these requirements for remote workers, employers should:

  • Establish protocols for reporting and recording work time. Where flexibility is required, consider requesting employees to provide a schedule for when they will be working.  Consider requiring employees to “punch in” electronically when they are working.

  • Establish protocols for reporting/approving absences.

  • Establish protocols for approving overtime.

  • Prepare Hours of Work Agreements where required.

Performance Management and Communication 

Communicating the employer’s expectations and the employee’s responsibilities ensures an efficient continuation of business operations. 

  • What are the expectations regarding responsiveness, connectivity and methods of communication?

  • How can employees have access to applicable policies and procedures that continue to apply during remote work? 

  • How will employees receive and submit work?

  • How does an employer support employees working remotely?

  • How will managers check-in with their direct reports to keep them engaged?

  • Consider contingencies and communicate to employees who they should contact if their manager is not available.  Update regularly.

 

Providing Support

Employees should have all the tools and equipment required to work remotely and should not bear the cost of acquiring this equipment.  Required equipment may include a work desk, an internet connection, desktop, laptop, scanner, cellular phone, and stationery.  Employees have a responsibility to maintain and secure any property and all equipment should be returned once the employee ceases working remotely.  A remote working policy should set out what financial reimbursements the employer will provide for increased internet or phone usage resulting from employees working remotely. 

The article in this update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Liberatore Law LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hunter Liberatore Law LLP. ©

2 Pardee Ave., Suite 300, M6K 3H5

Toronto, Canada

Tel: 416-534-7770  I  Fax: 416-534-7771

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