A legal vagueness remains around telework after two years of pandemic

(Montreal) Surveillance, purchases and accidents: even after more than two years of pandemic, the rules surrounding telework remain unclear, according to experts.

“It is normal that it is not clear for everyone, the law of telework, because in fact, there are no specific rules” for this scenario, explains lawyer Marjolaine Condrain- Morel, legal popularizer at Éducaloi. According to her, “the law is still to be built”, that is to say that we will have to wait “for the courts to look into this, on real cases, to see what is legal. and what is not”.

In the meantime, the usual standards apply. However, when employees perform their duties from home, then these guidelines may conflict with other laws.

“When we are on the employer’s premises, we see each other, we can observe each other […]the employer can have a sort of validation of what is happening with the employee,” recalls Ms.^e Condrain-Morel. But when workers stay in their own homes, having that level of surveillance would require activating cameras, or even sharing one’s screen.

So how do you know what’s out of bounds? After all, “when we are at home, we still have this right to privacy which is very dear to us”, notably under article 5 of the Quebec Charter of Human Rights and Freedoms.

For example, even before the pandemic, the courts had ruled that an employer had the right to electronically monitor the computer of its employees on a random basis, as it was not continuous, it was not aimed at a specific person and everyone had been informed in advance, she says.

“It is certain that the camera should not be open all day, we must be reasonable in our supervision”, notes M^e Marie-Hélène Jolicœur, lawyer specializing in labor law at Lavery. According to her, employers can “request working hours and do little checks, request availability when the person is supposed to be present, request some accountability” and organize end-of-day meetings to follow up, rather “than asking to be connected, to turn on your camera, to be always online, for example on platforms like Teams”.

For example, it would be difficult to prohibit an employee from putting a wallpaper behind him during a meeting on Zoom, as “one cannot necessarily demand to see the workplace when one is in the privacy of the person “.

house accident

If a teleworker trips on their own stairs on their way to the bathroom, is their accident covered by their boss? It may well be so, but each situation must be treated on a case-by-case basis.

The accident must “take place during work”, a definition which is “fairly broad”, according to M^e Condrain-Morel. “Was it done during professional activities and not during personal activities? When you’re at home, the line is a little thinner. »

There are precedents, she says: “A lady who worked on the second floor came downstairs to go to her dinner hour, she was eating in the kitchen, she had an accident and it was recognized as a work accident” , in the same way as if it had happened in the office. In another recognized case, an employee had slipped on a patch of ice when leaving his vehicle, returning after going to a customer.

The Commission for Standards, Equity, Health and Safety at Work (CNESST) confirms by email that “it may be more difficult to establish whether the injury occurred by the fact or on the occasion of the work, since the professional sphere merges with the personal sphere”. In cases like these, it takes into account the place and time of the accident, but also “the nature of the activities carried out” and “the presence of a relationship of subordination between the employer and the worker” time of the facts.

Ergonomic puzzle

But where the rules get even more complicated is when it comes to purchasing office equipment. Normally, if you are paid more than the minimum wage, the employer can require that you get your own equipment. In teleworking, this may very well include a chair and a table.

However, the employer also has the responsibility to “prevent anything that could affect health and safety,” notes Ms.^e Sweet heart. This muddles the waters, because even when you sit all day, office installations can be the cause of occupational diseases, such as back pain or tendonitis.

The CNESST indicates that “to reduce the risk of workers developing musculoskeletal disorders due to static posture, certain measures must be implemented by the employer”, including “providing ergonomic workstations”.

On the other hand, a boss is not obliged “to provide office furniture to teleworkers and teleworkers”, explains the commission. But if he chooses to provide the equipment, then there, he “has the obligation to ensure that it is safe and to maintain it in good condition. »

M^e Condrain-Morel points out that the boss is not the only one who must do his best to avoid health problems, as it is a responsibility shared by the employee. The latter “must also alert his employer if there are problems”, for example an uncomfortable chair. “Perhaps he will not provide the chair, but perhaps at that time the right to telework will no longer be allowed for this employee, because he is not adequately equipped to the House. »