After two years of pandemic, telework still remains in legal limbo
At the moment, there are no specific rules governing teleworking.
Surveillance, purchases and accidents: Even after more than two years of the pandemic, the rules around working from home remain unclear, experts say.
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 the x27; lawyer Marjolaine Condrain-Morel, legal popularizer at Éducaloi.
According to her, the law is still to be constructed, that is to say that we will have to wait for the courts to consider this, on real cases, to see what is legal and what is not.
In the meantime, therefore, the usual standards apply. However, when employees perform their duties from home, these guidelines may conflict with other laws.
When we are on the premises of the employer, we see each other, we can observe each other […], the employer can have a kind of validation of what is happening with the employee , recalls Me 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.
A recent dossier from the “New York Times” describes how remote electronic monitoring of workers is a phenomenon which has spread with telework.
How then do we know what is out of bounds? After all, when we are at home, we still have this right to privacy which is very dear to us, in particular under article 5 of the Quebec Charter of Human Rights and Freedoms.
For example, even before the pandemic, courts had ruled that an employer had the right to randomly electronically monitor its employees' computers. As it was not continuous, it was not aimed at a specific person and everyone had been informed in advance, she claims.
It is certain that the camera should not be on all day, we must be reasonable in our supervision, notes Me Marie-Hélène Jolicoeur, lawyer specializing in labor law at Lavery.
According to her, employers can ask what the working hours are and do little checks, request availability when the person is supposed to be present, ask for 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, because one cannot necessarily demand to see the workplace when one is in the privacy of the person.
A virtual meeting
< p class="e-p">If a teleworker stumbles on his stairs on his way to the bathroom, is his accident covered by his boss? It may well be so, but situations must be dealt with on a case-by-case basis.
The accident must take place at work, a definition which is quite broad, according to Me Condrain-Morel. Did it happen during professional activities rather than 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 for her lunch hour. She was eating in the kitchen, she had an accident and it was recognized as an accident at work, 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 getting out of his vehicle, 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 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 at the time of the facts.
A mom who telecommutes with her children.
Where the rules get even more complicated more, it's in terms of buying office equipment. Normally, if you are paid more than the minimum wage, the employer can require that you get your own equipment. In telework, 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 Me Jolicoeur. 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 put in place by the employer, including providing ergonomic workstations.
On the other hand, a boss is not obliged to provide office furniture to teleworkers, explains the commission. But if he chooses to provide the equipment, then he has an obligation to ensure that it is safe and to maintain it in good condition.< /p>
Me Condrain-Morel emphasizes that the boss is not the only one who must do his best to avoid health problems. It is a shared responsibility with the employee. The latter must also alert his employer if there are problems, for example an uncomfortable chair.
Maybe the employer won't provide the chair, and maybe at that point telecommuting will no longer be allowed for this employee there because he is not properly equipped at home.