For many years now, employers have allowed employees to work from outside the traditional workplace, and especially from home. This type of arrangement, known as “teleworking” or “telecommuting”, grew rapidly in popularity in the 1990s and has stabilized at around 10% of the workforce since the mid-2000s.
Several factors explain the attraction of teleworking: developments in information technology, balancing work and family life, the cost of leasing traditional office space, and even traffic congestion!
While it is difficult to precisely define telework, given the various conditions under which it can be performed, it can be said that teleworking consists of performing work outside of the employer’s place of business, on a part-time or full-time basis, whether or not information technology is used.
Teleworking is a new form of work that is however subject to long-standing laws and regulations that unfortunately are not always ideally suited to this new reality.
When it comes to preventing and compensating occupational injuries for example, it is generally recognized that a person performing telework falls within the definition of a “worker” in both the Act Respecting Occupational Health and Safety (OHSA) and the Act Respecting Industrial Accidents and Occupational Diseases (IAODA). In the same vein, the courts recognize, provided certain conditions are met, that the home of an employee performing telework can be equated with a workplace within the meaning of the OHSA.
This thus means that employers whose employees perform telework are subject to the same obligations towards them as towards employees who work in one of the employer’s places of business.
This implies that the employer remains responsible for preventing a work-related accident or an occupational illness suffered by an employee working outside its place of business, and in the event of such an accident or illness, the teleworker is eligible for all of the benefits provided for in the IAODA, which will necessarily have an impact on the employer’s file with the workers’ compensation board (CNESST).
The fulfilment of the employer’s prevention obligations, legitimate as they are, raises important issues having to do with the employee’s privacy and the inviolability of his or her home. Thus, to what extent can the employer ensure that the employee’s workplace is in good order and equipped with adequate safety features, without infringing the employee’s privacy rights? By the same token, can a CNESST inspector carry out a workplace inspection when the workplace is in the employee’s home?
There is also the delicate question of supervising and monitoring the employee’s activities while teleworking. Technological developments allow the employer to monitor the use of IT tools (computers, telephones, etc.) but this becomes more sensitive where the employee is working from home and sometimes uses technological equipment provided by the employer for personal purposes.
While the popularity of telework has remained stable for the last few years, one thing is certain: this form of work is here to stay. Thus, as the legal ground-rules governing teleworking are not as clear as they ideally should be, employers should adopt a policy in this regard setting out terms and conditions, and the potential consequences for not respecting them.