“ It seems to me I could live my life a lot better than I think I am.
I guess that’s why they call me, they call me the workin’ man.”
-Working Man Rush, 1974
We are continuing our series on work and employment conditions, this time in relation to teleworking and the right to disconnect.
We are witnessing the emergence of telework as a new working condition, a work arrangement that was once considered atypical or exceptional. The Government of Quebec formalized the way it treats teleworking for its own employees in a Policy document (2022), which from the onset defines what constitutes teleworking:
In principle all rules applicable “in office” will equally apply to teleworking, with the necessary adjustments:
– Will the employee who is injured at home be covered by the Act respecting Industrial accidents and occupational diseases (RQLR, c. A-3.001)?
A court decision predating the pandemic (2009) assimilated the residence of a worker who injured herself, where she was principally exercising her work, as her workplace and therefore coverage was to be offered under the Act for her back injury sustained while she was lifting a box containing her work files. As long as the place of residence, or working location, has been approved by the employer and the accident occurred on the occasion of work, coverage under the Act respecting industrial accidents and occupational diseases should be warranted.
– Will the employer be subject under the Act respecting occupational health and safety (RLRQ, c. S-2.1) to
some obligations whenever work is fulfilled out of an employee’s residence?
A fine balance needs to be established in this newly marked employer-employee relationship considering that the employer is in right to retain management and control over its employee notwithstanding the workplace of consideration; yet all the while the residence of the employee is subject to some expectation of privacy due to the special nature of the location. It is recommended that obligations and conditions be defined in a document to be appended to the original employment contract. This may include how inspections by the employer, or the CNESST, may be carried out of the residence of the employee in the respect of the employee privacy. As an example, photo of the homebase workplace may be requested by an employer who wishes to see fulfilled the obligations relating to a working environment that is proper and safe. Breaches of such may mean that the employer will require that the employee returns to office locations.
Also, even if you work remotely, you are protected by law if you are a victim of psychological or sexual harassment as much as being on the employer workplace. And while most employers do have a zero-tolerance policy against drugs, alcohol, or other influence on working premises, during working hours or professional engagements, this policy will fully apply to teleworking.
– What is the impact of teleworking on the Act respecting Labour Standards (RQLR, c. N-1.1)?
Answers on how norms shall be applied to teleworking circumstances are just emerging and are constantly refined. Generally speaking, even at home, the employer retains a certain control over its employees’ work and performance. For example, in a case where a former employer was sued for unpaid overtime worked from home, as authorized by the employer, the court found out that the employer should have controlled the hours worked by the employee. These were not uncontrollable
– overtime had not been controlled by the employer who was found in default of its obligations for control. The counterpart for the employee is that he/she is expecting control and supervision by the employer through clear means and measures:
It is normal, especially in a context of telework, that the person in authority at the employer requires the worker to report regularly on the evolution of its mandates and that it provides a product that meets certain quality and productivity criteria. (our translation – 2012 Sansfaçon decision)
The right to monitor and supervise teleworkers need to be finely balanced with the employee right to privacy. It may warrant the development of policies and agreements which will clearly answer this need while determining the modes of supervision and control; setting clear objectives; providing performance review process; defining monitoring methods (technology tools; employer visits).
Notably, working hours will need to be respected even in a telework context, under the employees’ general obligations
for loyalty and honesty. Same will apply to overtime, based on the employer’s standards and working policies unless they be considered uncontrollable despite control measures in place. These measures should also encompass break times, lunch hours, and other daily arrangements. The overall policy regarding holidays and days off will also apply to teleworking, with still the need to have a notice served to your employer whenever you will be off, with listed reason and duration.
– What is the impact of telework on confidentiality from the employer standpoint?
Teleworking may create several issues relating to the use of information technology and the protection of information that are considered confidential by your employer. Your employer may have paid for your work tools, which is warranted under the Labour Standards Act if you are paid minimum wage, or if you are paid above the minimum wage but paying for your tools will result in receiving less than the minimum wage. However, even if they are not obliged to do so, several employers decide to supply the equipment to their employees for reasons of IT security and efficiency of their employees. In all cases, you have a duty to care and to protect the confidentiality of your employer’s information by any appropriate mean so to ensure the confidentiality of your working documents, telephone conversations and job-related data in your devices.
– Are there other impacts to forsee?
Tax issues should be assessed by the teleworker as, generally, certain expenses related to working from home can be deducted whenever an employer requires telework but does not reimburse certain costs (eligible expenses vary but may range from stationery to telecommunications, to electricity and cleaning, to minor repairs, etc.). Collaboration with your employer will be key as forms are to be filled by the latter in order to see your claims processed. However, certain telework benefits may be taxable, hence your condition should be canvassed first to avoid surprises at fiscal declaration times. Furthermore, you should inform your home insurer that you are teleworking as this may be considered a variation of the risks associated with your residence.
Telework may be authorized but not imposed by your employer and, if defined as one of your working conditions within your employment contract, cannot be modified unilaterally.
The constant connection to mobile devices may also blur the line between workers’ working and personal lives and thus increase the risk of hyperconnectivity. It is not uncommon to feel pressured to respond to emails from a client, supervisor, employer or co-worker in the evening, on weekends or during a leave of absence. Or to be tempted to consult a notification about a work-related application uploaded to our cell. As a simple reflex or requirement of the employer, this practice can undoubtedly have consequences for the physical and mental health of the workers. A possible solution? The recognition of the workers’ right to disconnect.
The concept of the “right to disconnect” emerged in France in 2017 as part of a new set of labour laws. It requires all companies with 50 or more employees to put in place measures to regulate the use of digital tools and to provide employees with a period of rest and leave while respecting their personal and family life. Since then, a dozen countries have imitated it, including Spain, Portugal, Italy, and Belgium.
Since 2020, the Government of Canada has been consulting on solutions that would give federally regulated workers the right to disconnect. However, no legislation or amendments to the Canada Labour Code have been passed in this regard.
February 2022 Report
Ontario is the first (and only) province to legislate the right to disconnect. It did pass legislation that requires employers to adopt policies that take into account workers’ need for rest. Since June 2022, all businesses with 25 or more employees have been required to adopt a “work disconnect” policy, which is defined as not transmitting communications (emails, calls, messages) outside of working hours, so as to be disconnected from work.
Although the Quebec Province does not have a specific regulatory framework, certain provisions of the Act respecting Labour Standards, the Civil Code of Quebec, the Act respecting occupational health and safety, and the Charter of Human Rights and Freedoms include certain principles relating to working time, the right to privacy and occupational health and safety. These provisions effectively cover several issues related to the right to disconnect, including rest periods and time spent on family obligations. However, the fact remains that these provisions do not protect all workers, such as executives, those with flexible hours or those who are paid on a lump-sum annual basis, for example. The absence of a clear right to disconnect in Quebec legislation should not prevent businesses and employers from putting in place mechanisms to try to limit or better regulate the risks of hyperconnectivity and thus reduce its impact on the psychological health of their workers. For the Quebec Labour Minister, Mr. Jean Boulet, the issue of the right to disconnect must be addressed between employers and employees. A Labour Law lawyer himself, he indicated being concerned about the risk of abuse and impacts on employees, but he does not want to interfere in the collective or individual bargaining processes, which are central to working relations.
It is highly recommended that, as in any relationship, the employer-employee arrangements be discussed and defined according to the needs and objectives of your specific employment. It means encompassing clear working conditions in relation to:
• The work from home notion, its feasibility and its means of control and supervision by the employer;
• The working hours schedule, and in-office presences of the teleworker;
• The equipment to be provided by the teleworker and/or the employer;
• The protection of the employer confidential information from the work from home location;
• The right to disconnect provisions.
Amongst other things!
Legal tips aim at explaining to the Nunavik Inuit clientele in a general and broad manner some elements of the law applicable in Quebec and are not legal opinions nor legal advice which can be obtained by contacting private practitioners (lawyer or notary). Makivvik Legal is thanking www.educaloi.qc.ca, SOQUIJ and Norton Rose Fulbright (2020) for their input in the preparation of this Legal tip.