Published by Tara Vasdani in The Lawyer's Daily December 4, 2020:
For years, our law firm has touted the use of legal, enforceable and foolproof remote work policies for distributed teams in Canada. Since the onset of the COVID-19 pandemic, that requirement has become quintessential.
A remote work policy is the only surefire way to protect an employee and employer from human rights claims related to disability and ergonomics, home office injuries, and, most importantly — constructive dismissal claims arising from a fundamental change made to the arrangement.
As lawyers, we advise that a successful remote work policy is required for organizations that hope to continue to work remotely, to expand their remote working arrangements or to operate a majority-distributed team.
A remote work policy should properly set out when and why you permit remote work, how a staff member can apply and the fact that remote work is discretionary — and may be revisited, or revised, at your will. Within the policy, the employer should set out the requirements of the remote workspace (e.g. it must be safe, no external distractions, confidentiality is paramount, the employee must have access to a high speed and reliable Internet connection, etc.), set out equipment requirements, set out cybersecurity requirements, set out availability requirements, set out communication requirements, set out expense requirements, address insurance and risk and state how the arrangement (if ever) may come to an end.
The policy should include the type of work that can be carried out remotely, the impact the arrangement will have on other staff members, the foreseeability of the employee to organize, budget time and work independently, the requirement to review an employee’s employment history prior to granting the arrangement, the suitability of the remote workspace, whether it is possible for the employee to measure his or her work output quantifiably and any other reasonable business considerations.
A comprehensive policy should include the employee’s name, title, department, contact information and details of the workspace — including addressing health and safety, the clearance of clutter and trip hazards, separation of the work area from home, the requirement that there be sufficient ventilation and heating, security concerns, the requirement that there be lockable doors and windows, allow the employee to advise who has access to the space, confirm that emergency response preparation details (e.g. police, fire and ambulance contact details) and a smoke alarm are around, and most importantly — contain an ergonomic self-assessment.
Once signed off, the employer should begin to consider how it will keep its employees engaged, establishing a platform for communication. The employer should also set out how platforms are to be used, how many times a week an employee must check in with their manager or supervisor and requirements to quantify workload and output.
The ability to work remotely has gone from a “work perk” to a necessity in the COVID-19 pandemic, and as Bill Gates has predicted, will last very long thereafter. Prior to the pandemic, 85 per cent of North American office workers expected that their employers would provide technology which allows them to work from wherever they choose — whether at their desk, from home, in a co-working space or a coffee shop nearby.
In addition to lower attrition rates and enormous cost savings on commercial real estate, remote work policies can make it easier to recruit new employees. This is especially true for millennials who today communicate via electronics, as opposed to over the phone, or in person, most of the time.
Tara Vasdani is the principal lawyer and founder of Remote Law Canada. Her practice centres on employment law, civil litigation and remote work. She has been featured in Forbes. She was the first Canadian lawyer to serve a statement of claim via Instagram, and you can reach her directly at firstname.lastname@example.org.