MS PATRICIA CHAMOUN
LEGAL AND BUSINESS ADVICE
The emergence of the Covid-19 pandemic forced a massive shift to telecommuting. While some workers admit that they have developed a taste for it, others question the health and safety of employees. Indeed, the phenomenon contributes to blurring the line between work and personal life, resulting in a situation of “work overload” for many workers.
Written in collaboration with Ms Samuel Craissati
The following paragraphs will outline some of the factors that my clients (employers and employees) have been facing since the beginning of the pandemic. What are the risks associated with telecommuting, the legal framework in this area? And most importantly, what are the new ways in which employers can ensure adequate working conditions for telecommuters?
Risk Factors
Imagine you are in front of a screen all day long, the concept of time and the periods of the day are inconsequential. From morning to night, you’re in pajamas or sportswear; your lunch becomes your breakfast and even though it’s eight o’clock at night, emails continue to bing! on your screen…
The Institut national de santé publique du Québec (INSPQ) has produced a document on the risks of telecommuting on the psychological health of workers in the context of a pandemic. The INSP points out that telecommuting can lead to an increased workload and that, more specifically, the following factors may have an adverse impact on workers’ health :
The risk of being hyper-connected at work (e.g., continuous teleconferencing, constantly open cell phones, e-mail requests or other requests that arrive at all hours);
In the absence of definitive legislative and jurisprudential guidelines, the meeting point between telecommuting and health and safety remains unclear. The Act respecting occupational health and safety and the Act respecting industrial accidents and occupational diseases continue to apply to workers. The employer’s obligations in a telecommuting context therefore remain the same as usual.
The employer must take the necessary measures to ensure the health and safety of its employees. To this end, the employer also has an obligation to help its employees balance work and family life.
Jurisprudence has, moreover, repeatedly recognized that a psychological injury resulting from an overload of work can be considered an employment injury. The F.B. v. Company A case sets out the criteria and situations that will be considered as overwork:
■ A lack of help or support that results in an overload of work while being combined with particularly stressful working conditions;
■ Insufficient training to adequately perform the new tasks assigned, combined with the presence of other stressors;
■ Lack of resources or changes in working conditions that result in increased responsibilities with multiple tasks, combined with other stressors that contribute to increased tension;
■ Work overload due to the absence of staff and the lack of appropriate training;
■ Work overload due to a change in working conditions or a significant change in tasks.
The solution? Establish a telecommuting policy
The best employers will try to facilitate telecommuting by putting in place structures to ensure the physical and psychological health of their staff. The first step is the establishment of a telecommuting policy, which outlines its terms and conditions, as well as the rights and responsibilities of each party.
Among the elements to be considered when drafting a telecommuting policy by the employer are the following:
■ The specification of the number of working hours, as well as the schedule of the employee who telecommutes;
■ Accommodation measures, such as reduced hours of work in exchange for reduced pay, or the implementation of a flexible work schedule;
■ The employer’s expectations regarding the use of its equipment and work tools;
■ The disciplinary measures that can be granted to employees who do not respect the established rules;
■ The terms of the employer’s right to terminate telecommuting;
Of course, each policy must be approached according to the reality and needs of the company.
Telecommuting is likely to remain very present in the months and even years to come. In fact, the Quebec government is planning to modernize labour laws to reflect this new reality.
