Posted at 6:00 a.m.
Q. While walking up the stairs at home in socks, from his kitchen to his work table in the basement with his coffee in hand, a worker tumbles, scalds himself and fractures his big toe. In hybrid mode, does the Occupational Safety and Health Act applies to both office and home?
R. Yes, in hybrid work, the dwelling house is considered a “workplace” and if a worker falls there while performing his tasks, it will be recognized as a work accident in the same way as if the he event had occurred in the employer’s establishment. The grayest questions relate to incidents occurring during breaks or just before or just after the shift: the court will then carefully analyze the circumstances of the incident to determine if there is a connection with work. In the same way, an incident occurring in teleworking while indulging in a purely personal gesture, such as going to answer the Amazon delivery man, could be excluded from the scope of the law.
PHOTO PROVIDED BY BLG
Mand Katherine Poirier, Associate Labor and Employment Lawyer at BLG
Q. But if working from home is optional, and no longer mandatory as at the start of the pandemic, do the health and safety rules still apply at home?
R. The Occupational Health and Safety Act was recently amended to provide that a place of residence may constitute a “workplace”, regardless of whether telework is carried out there sporadically or permanently. Thus, the general obligations of the employer and the employee aimed at ensuring that the work is carried out in a safe manner apply when the employee works from home. As for the occurrence of an employment injury, the fact that the employee telecommutes sporadically rather than on a regular or permanent basis will not in itself prevent the employee from being compensated.
Q. Can an employee refuse to go to the office if their employer imposes a return to full-time work?
R. This question must be assessed according to the reality specific to the parties and the contractual agreement in force. The employment contract, collective agreement or telework policy in place may restrict access to telework or, on the contrary, create rights in favor of the employee. It must be kept in mind that an employment contract evolves according to the reality of its concrete working conditions: thus, a contract concluded several years ago which provided that work could only be carried out from establishment of the employer could be modified by the reality of the parties, if the employer maintains its employees in telework when it is no longer mandatory.
Q. What are the employer and the employee exposed to on both sides in this regard: if the employer obliges and if the employee refuses to go?
R. Case law will clarify everything for us, of course. But at this time, an employee who refuses to return to work on the premises, after having been formally notified to do so, could expose himself to the employer considering that there is abandonment of position. On the other hand, the employee could potentially claim that the employer is substantially modifying his working conditions by requiring on-site presence, especially if the role was carried out by teleworking on a continuous basis. The contractual context between the parties, the nature of the position and duties, the reason for which the employer is requesting the return to work (related to the tasks? related to the performance of the employee in question? related to the exercise of the right management? does everyone have to come back or just this employee?) and the reason given by the employee for refusing (such as a chronic illness, a handicap, family obligations, a right recognized by the employer) will influence the legal impact of such a refusal.
Q. Is it time to reopen and update company policies because of hybrid working?
R. It is indeed important to update them, in particular the organization’s teleworking policy, the computer security policy when employees log on remotely, the policy on harassment and violence at work (in order to specify that incidents occurring in teleworking may be covered by the policies). But above all, it is important to specifically provide for a procedure in order to immediately report any accident occurring in telework, by documenting such an accident as if a first aider had intervened in the employer’s establishment.
Q. At BLG, do you sense major questions among your customers about the return to hybrids?
R. Many employers are wondering about the hybrid mode and its impact on employee engagement, in particular, and on their health and safety obligations. Several organizations set up incentives so that employees are present in the establishment at specific times, in order to foster a spirit of collegiality and the sharing of knowledge. Some employers whose activities require them to provide service to customers in the establishment find that the hybrid work mode they have offered to their employees increases the administrative burden related to the management of teams, especially when teleworking is not planned or plannable. One thing is certain: unless there is a context of absolute certainty (for example: everything must be carried out on the premises where there is no longer an establishment and everything must be entirely teleworked), organizations still have an advantage in communicate to their employees that the current hybrid mode may be subject to change depending on the evolution of the role of each and the activities of the organization.