It is no surprise that the workplace is not immune to the changes seen in the transition from one generation to the next. Technological advances and shifting values in the workplace are leading to new ways of working. Balancing work, family and personal responsibilities remains a priority for many Canadians, but how an employee achieves this balance is changing. What we are seeing firsthand, and what is borne out by the research of others, is that in seeking to strike this balance, today’s workforce increasingly values autonomy and flexibility over place and hours of work.

This year, Deloitte’s Global Millennial Survey titled “Societal discord and technological transformation create a “generation disrupted”, provides a current summary of some of the expected challenges facing employers given the emerging dominance of millennials and Gen Z’s in the workplace. One of the most startling findings from this report was that out of the millennials surveyed, 49 percent would quit their jobs in the next two years if they had the choice. Roughly a quarter of those same individuals reported leaving an employer in the past 24 months. Generally, the main reasons cited by these employees for leaving their employment included a dissatisfaction with pay, and a lack of advancement and professional development opportunities. In light of these findings, there is a real risk that employers will have difficulty maintaining a stable workforce in the future.

Compared to the traditional full-time work, millennials have indicated that freelance and contract work commonly referred to as the “gig economy”, is appealing. At present only 6 percent of millennials have chosen to enter the so-called gig economy, but 50 percent said they would consider it, and 61 percent advised they would take gig assignments to supplement their existing employment. Reasons for joining the gig economy include the chance to earn more money (58 percent), work the hours they want (41 percent), or achieve a better work/life balance (37 percent). Statistics Canada issued a 2018 study that provides some insight into the association between job flexibility and job satisfaction in Canadians aged 18 to 64. This study examined four aspects of job flexibility including: the order of work (or the sequence of tasks), how the work is done, the speed of work, and the hours of work. In both men and women, control over the hours of work was most strongly associated with job satisfaction. This association was even stronger among younger individuals.

Does an employee need to be allowed to work from home?

There are currently no provincial or territorial laws in Canada that provide employees with an express right to request flexible work arrangements, but such a request may be made under human rights legislation provided it is based on an enumerated ground and any modifications to flexible work arrangements may attract a constructive dismissal claim.

Human rights accommodation requests

Requests for a flexible work arrangement as a form of accommodation are typically founded on one of the following grounds: i) physical disability; ii) family status - children; and iii) family status - elder care. These accommodation requests often include the following arguments:

  • Working from home is the most effective way to address a medical or family status issue;
  • Comparison to other employees permitted to work from home and citing discriminatory or unequal treatment;
  • Arguing that there is nothing inherent about the position that would require they be in the office physically; and
  • Stating that there would be no decline in their availability, productivity or quality of work.

Human rights accommodation requests: Employer strategies

When faced with an accommodation request to work from home, consider the following questions:

  • Is there evidence that the employee needs to work from home in order to receive accommodation (either medical or related to family status)?
  • Regarding a physical disability based accommodation request, is there evidence to suggest that the work from home accommodation is ergonomically fit for the employee’s particular needs?
  • Is there anything about the employee’s position that would preclude their working from home?
    • Does the employee require a high level of supervision (or has the employee demonstrated they do not require supervision)?
    • Have there been performance issues that suggest in-person accountability is required? Are there confidentiality concerns with employee bringing documents home or accessing files from home?
    • Is there remaining or ongoing training required for this employee that would be more effective in person?
    • Are there specific hours the employee needs to be available that can be easier facilitated in the office than at home?
  • Does the employee working from home result in undue hardship for the employer?

Civil basis: Constructive dismissal

Where an employee is provided with the ability to work from home, removal of that privilege during the term of employment may trigger constructive dismissal. The key factor to determining whether removal of work from home privileges will constitute constructive dismissal is whether working from home constituted a fundamental term of employment. Some factors that may indicate whether working from home is a fundamental term of employment include:

  • How long did the employee have the option to work from home?
  • Is working from home a term of the employment agreement, or did it occur over time (vs. a standalone or unofficial policy)?
  • What percentage of the employee’s time were they allowed to work from home?
  • What is the impact of altering the work from home arrangement?
    • How far does the employee need to commute into the office?
    • How reasonable is it to require the employee be present in the office (i.e. is their role entirely capable of being performed remotely)?
  • What is the basis for altering the work from home arrangement (e.g. poor performance vs. desire to increase team’s interactions with one another?

Flexible workplace policies

Where employees commonly work from home, a “Flexible Workplace Policy” may be appropriate. In the event a single employee works from home related to an accommodation request, appropriate documentation of the request, form of accommodation and updates and timelines related to the accommodation should be used instead of a Flexible Workplace Policy.

A flexible workplace policy should include:

  • Statement of the employer’s attitude toward flexible work arrangements (e.g. privilege that should be used sparingly vs. strongly encouraged);
  • Clear statement that the employer has ultimate discretion to allow or disallow work from home arrangement for all employees or any particular employee;
  • Clear outline of performance requirements or expectations of employee;
  • Definition of key terms;
  • Definition of core hours that employee must be available;
  • Clear outline as to what positions qualify for use of the policy;
  • Any limits on the number or percent of employees within a department working from home;
    • methods for confirming these numbers or percentages and scheduling work from home days;
  • Statement allowing management or supervisors to designate key meetings as requiring in-person attendance;
  • Clear statement that modifications to or removal of Flexible Workplace Policy are in the employer’s sole discretion and will not constitute constructive dismissal;
  • Statements to account for Occupational Health and Safety requirements;
  • Minimum standards of equipment (e.g. computer, internet speed, etc.); and
  • Allocation of responsibility for purchasing any required equipment.

Additional Considerations

Occupational health and safety

Subject to limited exceptions, the Occupational Health and Safety Act applies to employees who work from home.

Best practices are to include general statements about employees’ responsibilities to ensure their work space is safe, especially in any applicable Flexible Work Policy. It is important for the employer to pay special attention to any ergonomic concerns raised by employees regarding their work from home space. This can easily slip through the cracks and set the stage for an OHS complaint. Employers should very clearly instruct employees to immediately report any work-related illness or injury, especially when working from home.

Overtime

It’s important to keep in mind that not all employees working from home will be exempt from receivingovertime pay. In light of this, diligently tracking employee hours can be even more important for remote employees. Failure to monitor employee hours could result in the employee arguing they are entitled to additional overtime pay, which can lead to an Employment Standards complaint, (which is free for theemployee to pursue, and can include up to 6 months of unpaid overtime), or up to 2 years of wages if theemployee brings a civil claim. Best practice is to diligently track hours and ensure that employment agreements and/or overtime policies include the express statement that all overtime hours must be approved in advance in writing.