Legal vagueness persists around teleworking after two years of pandemic

Legal vagueness persists around teleworking after two years of pandemic

(Montreal) Surveillance, shopping and accidents: Even after more than two years of the pandemic, the rules surrounding telecommuting remain unclear, experts say.

Posted at 10:17 am

Clara Descurninges
the canadian press

“It is normal that the teleworking law is not clear to everyone, because in fact there are no specific rules” for this scenario, explains lawyer Marjolaine Condrain-Morel, legal disseminator at Éducoi. According to her, “the law is yet to be built”, that is, we will have to wait “for the courts to examine this, in real cases, to see what is legal and what is not.”

In the meantime, the usual rules apply. However, when employees perform their duties from home, 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 kind of validation of what is happening with the employee”, recalls Condrain-Morel. But when workers stay in their own homes, having that level of surveillance would require turning on cameras or even screen sharing.

So how do you know what is off limits? After all, “when we are at home, we still have this right to privacy that 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, the courts had ruled that an employer had the right to electronically monitor their employees’ computers on a random basis because it was not continuous, it was not targeted to a specific person, and everyone had been informed. in advance, she says.

“It is true that the camera should not be open all day, we must be reasonable in our supervision,” says Marie-Hélène Jolicœur, lawyer specializing in labor law at Lavery. According to her, employers can “request work hours and do small checks, request availability when the person is supposed to be present, request responsibility” and organize meetings at the end of the day to follow up, instead of “asking to be connected”. “. turn on your camera, always be online, for example on platforms like Teams.”

Il serait par exemple difficile d’interdire à un employee de mettre un fond d’écran derrière lui lors d’une réunion sur Zoom, comme «on ne peut pas nécessairement to demand to see the lieux du travail quand on est dans l’intimaté de person “.

home accident

If a telecommuter trips over their own stairs on the 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 that is “fairly broad”, according to Mme 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 is a history, he says: “A lady who worked on the second floor came down to go to her dinner 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 piece of ice while exiting his vehicle, returning after going to a customer.

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

ergonomic puzzle

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

However, the employer also has a responsibility to “prevent anything that could affect health and safety,” says Beautiful heart. This muddies the waters, because even sitting all day, office facilities can be the cause of occupational illnesses, such as back pain or tendinitis.

The CNESST indicates that “to reduce the risk of workers developing musculoskeletal disorders due to static posture, the employer must implement certain measures”, 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, he “has an obligation to make sure it’s safe and to keep it in good condition. »

METERme Condrain-Morel points out that the boss is not the only one who must do everything possible to avoid health problems, since it is a responsibility shared by the employee. The latter “must also alert his employer if there are problems”, for example, an uncomfortable chair. « Peut-être qu’il ne fournira pas la chaise, mais peut-être qu’à ce moment-là, le droit au télétravail ne sera plus permis pour cet employé-là, parce qu’il n’est pas adéquatement outillé à home. »

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