The challenges of remote work after the pandemic
This article first appeared in French in the June 2021 issue of the Journal des Parcs industriels of the Corporation des parcs industriels du Québec.
At the current vaccination rate, the imminent lifting of restrictions, including those requiring remote work, is a real possibility. Several legitimate questions will then arise for employers. Here are some legal and strategic considerations on this topic that may shape the world of work going forward.
The effect of the pandemic and the standard legal framework for remote work
Since 2020, the situation in Quebec has included mandatory remote work for some employees and the periodic closure of non-essential businesses. This state of affairs leads to the conclusion that, with a few exceptions, Quebec has been in a state of forced remote work. Indeed, most employers and employees have had to comply with this as part of the joint effort to contain the coronavirus.
As there is no specific law governing remote work, the general legal framework of labour law applies. For this reason, a remote work arrangement is ordinarily subject to mutual consent in order to be valid. Neither the employer nor the employee can unilaterally demand it. Thus, those who have not made remote work a condition of employment may discontinue it and require in-person work again. Others may decide to offer remote work on an ongoing basis. If so, an exchange of consent will be necessary (hereafter called the Agreement).
Some challenges of remote work
Remote workers are entitled to health and safety protection, regardless of whether the remote work arrangement arises from a pandemic or an Agreement. The employer’s obligations extend to the remote work location, and a remote worker can be involved in a workplace accident at that location. Thus, the Act respecting occupational health and safety, which provides that the employer must take the necessary measures to protect the health and ensure the safety and physical well-being of the worker, applies.
The employer must therefore be prepared to meet these obligations and be aware that this will result in investments and claims. Accommodating practices between the parties during the pandemic will come to an end in a world of voluntary remote work. Furthermore, remote workers may develop occupational injuries specific to their new work environment.
The Agreement will therefore have to cover specific issues such as the workplace (house, cottage), its layout, its maintenance (ventilation, temperature, lighting, quietness), the means of detecting risks (ergonomics, psychological health), the prevention of work-related accidents, accident reporting and workplace compliance with standards (fire safety, emergency procedures, power installations) and verification by the employer.
The designated workplace will also be subject to other considerations, including the availability of the employee to travel to the employer’s location, the quality of communications and the security of confidential and sensitive information.
The employer’s right to exercise control over the workplace and the option to visit the workplace on an occasional or regular basis are additional issues that the Agreement will need to address to document the employee’s consent.
Office equipment (computer, supplies, desk, chair, printer, etc.) is still required to perform work of sufficient quality and quantity. In accordance with section 85.1 of the Act respecting labour standards (LSA), we can immediately conclude that the employer does not have to assume all the costs. However, concern over the efficiency of the work equipment, computer security and the protection of confidential information, work documents and certain conversations may lead the employer to supply the equipment. Therefore, the Agreement should provide for the responsibility for the equipment, their careful and diligent use, and the conditions for their loan and return.
With some exceptions, the regular or contractual work schedule must be adhered to while working remotely, and the employee must be loyal and honest about it (art. 2088 Civil Code of Quebec). The provisions of the LSA continue to apply, including with respect to the 40-hour workweek and overtime (ss. 52 and 54 LSA). It will be prudent to provide in the Agreement that overtime must be approved in advance, as remote work does not make it uncontrollable (s. 54(4) LSA).
The employer must be able to monitor the productivity of its employees and can demand accounts and reports of remote work activities, within the limits of the right to privacy and management rights. The expectation of privacy is greater at home than in the office, and the employer should be aware of this. Continuous video or audio surveillance of an employee during the course of his or her work is generally not permitted, in the same way it is not permitted in a traditional office setting. Similarly, the use of electronic surveillance tools on a continuous and systematic basis is generally prohibited, with some exceptions. However, this does not mean that the employer is deprived of all means.
A policy on remote work will be a valuable tool to guide remote work and complement the Agreement. Although not mandatory, it will clearly establish the applicable rules, considering the many issues at stake. Such a policy cannot, on its own, be sufficient to compensate for the absence of employee consent regarding remote work itself, privacy, systematic or ad hoc monitoring, modification of the Agreement or termination of remote work at the employer’s initiative.
Several other aspects related to remote work, such as absenteeism management, mental health protection, psychological harassment, performance evaluation and management of administrative or disciplinary measures, will also be on the agenda.
The decision to allow remote work thus carries important legal implications. It must be made with full knowledge of the facts in order to satisfy the organization’s actual needs and strategic priorities.