It’s a brave new world: An update on the practical and legal implications associated with remote work

November 7, 2022

The COVID-19 pandemic has irrevocably changed the ways in which we live and work. Remote work arrangements have become increasingly common, and both employees and employers have benefitted from flexible work arrangements. While a number of employers are bringing their employees back to the office, many employers have elected to continue to allow their employees to work from home indefinitely or have adopted a “hybrid” approach. It is evident that remote work is a significant and possibly permanent feature of the landscape, and both employers and employees need to be aware of the practical and legal issues that may arise in connection with remote work.

Last year, we wrote a blog about the potential risks of working remotely. We return to the subject to provide a summary of the most common legal issues that have arisen over the past year relating to remote work arrangements.

Connectivity and privacy issues

Remote work provides employees with the flexibility to work in various locations (including outside of Ontario). There are however security risks associated with employees working on home computers and personal devices, including but not limited to these devices being lost, stolen, or hacked. Not only do employers need to ensure that they have taken adequate steps to protect their data and mitigate cyber risk, but they also need to ensure that their employees are fully apprised of any remote work policies and that such policies are consistently enforced. Employees should ensure that they are complying with any applicable policies when they work remotely. Although most remote work policies permit at least some amount of personal computer use, employees who fail to abide by their employer’s policies could expose the company to unnecessary risk and expose themselves to disciplinary action. In order to avoid these pitfalls, we strongly encourage both our employer and employee clients to take a proactive approach to these issues.

Jurisdiction issues

For those who continue to enjoy the benefits of working remotely, it may become increasingly tempting to reside in a different jurisdiction than the one in which their employer is located. While Ontario is generally considered to be an “employee friendly” jurisdiction, the same cannot be said for every jurisdiction in which an employee may decide to work remotely. As a result, employees and employers may inadvertently be causing or creating the potential for a dispute about which jurisdiction’s laws govern an employment contract.

Generally speaking, an employment contract is governed by the laws of the province or territory in which an employee is physically located and where the work is performed. If an employee works in a different jurisdiction than the one in which their employer is located, then the courts may be called upon to determine which jurisdiction’s laws apply by considering a variety of factors, including but not limited to the jurisdiction in which the contract was signed (see Sullivan v Four Seasons Hotels Ltd at para 54), the residence of the employee, the head office of the employer, and the location of the administrative details connected with the employment (see Machado v The Catalyst Capital Group Inc at paras 33-34).

Often, employers and employees will negotiate a jurisdiction clause in their contract so that there is clear agreement in advance about which jurisdiction’s laws will govern. That said, those clauses will not always be enforced. In Ontario, the Employment Standards Act (“ESA”) applies to any worker who either performs work in Ontario or works both inside and outside of the province in circumstances where the work outside of the province is a “continuation of the work performed in Ontario.” Moreover, Section 5(1) of the ESA precludes the courts in Ontario from enforcing jurisdiction clauses that result in employees receiving less than their minimum statutory entitlements. That is, a choice of law clause will not be enforced if the applicable jurisdiction provides an employee with less than they would otherwise receive under the ESA. This means that employees will never receive less than the statutory minimums required by the ESA, even in circumstances where there is an explicit agreement as between the parties that an employee can work remotely outside of Ontario and another jurisdiction’s laws will apply. Accordingly, employers and employees should exercise caution before agreeing to a remote work arrangement, since it could have unanticipated legal and financial consequences for both parties.

Human rights and occupational health and safety

Ontario’s human rights legislation and occupational health and safety requirements will likely extend to employees working remotely. Ontario’s Human Rights Code applies to all employees and has been interpreted broadly to include people working remotely outside of Ontario. The duties to accommodate employees under the Code apply regardless of where a workplace is located and the protections in the Code apply to employees after hours and even when they are not at their workplace, so employees should be aware of their rights and consult with a lawyer if they believe they have experienced discrimination related to their employment.

Similarly, “workplace” is broadly defined under Ontario’s Occupational Health and Safety Act as “…any land, premises, location, or thing at, upon, in or near which a worker works.” That said, there has been limited guidance to date about the application of this legislation to employees who work from home. In light of this lack of clarity, Ontario employers should exercise caution when it comes to workplace safety and specifically home office equipment used by employees who are working remotely.

Ontario law surrounding work does not contemplate remote work as a significant and sustained part of the landscape. The changes in how and where we work may affect our rights and liabilities and, unless and until the government passes legislation that contemplates the current realities of remote work, both employees and employers should exercise caution.

Should you have any questions about how a remote work arrangement could impact your employment contract, please don’t hesitate to contact the team at Mathers McHenry & Co.