Features Accommodation/Return-to-work Health & Safety Working Remotely Workplace Legislation
Could Canadian workers soon have the right to remote work?

Ireland recently launched a national strategy to make remote work a permanent fixture in the country’s workplaces.

With this new legislation expected in Q3 of 2021, employees will have the right to request remote work. However, it will not be guaranteed and employers will be able to refuse the request.

This interesting development raises several questions for Canadian employers.

However, it’s unlikely that similar legislation would pass in Canada, according to Puneet Tiwari, legal counsel and legal claims manager at HR consultancy firm Peninsula Canada in Toronto.

“Although Canadian employment law is heavily weighted towards the employee, mandating such requirements would be difficult,” he said. “A right to remote work could also mean repercussions for the economy as many employees would no longer be tied to a physical workplace and might decide to relocate permanently.”

Do employees have the right to remote work?

Although many businesses have opted for remote working arrangements since the start of the pandemic, there is currently no legislation in Canada stating that employees have the right to work remotely.

“The decision on whether employees will be able to work from home ultimately rests with their employer,” said Tiwari.

“An employee may request a remote working arrangement and it will be up to the employer to use their judgment to decide if this will be possible.”

Employers’ obligations and human rights

If an employee, for example, wants to work from home simply because they prefer it, their request may not be justified. The employer could refuse it if it creates conflict for the business.

However, when an employee’s request pertains to a human rights issue, employers must provide accommodation up to the point of undue hardship.

“If the worker is requesting remote work for a reason related to a protected ground under the applicable human rights legislation, refusing the request without attempting to compromise could result in a human rights claim for the employer,” said Tiwari.

“The employee might be at-risk of health complications from COVID-19 and be worried about coming into the physical workplace. Alternatively, the employee may have increased child-care obligations as a result of school closures. In either case, the employer would have to be careful about how they handle the request.”

At the end of the day, employers have businesses to run and they must consider how this will affect operations, he said.

If remote work is possible, the employees’ request should be accommodated. However, if accommodation would mean consequences for the business, the employer may be exempt.

Using workplace policies

As an HR best practice, employers should have a workplace policy on remote working, said Tiwari.

In this policy, employers should outline whether this is feasible for the business, who is eligible and state expectations of remote workers, among other information.

This policy should be clearly communicated and be easily accessible to all staff.

Employment contracts should also state the place of work and expectations of employees.