Working from Home: Workers' health and safety protections

The increased prevalence of WFH, and the length of time workers are doing it, raises questions about workers’ legal protections for occupational health and safety (OHS). The intersection of WFH and OHS protection is an underexplored topic that will likely present new legal challenges for workers and unions.

Ottawa (5 Oct. 2020) ― The National Union of Public and General Employees (NUPGE) is releasing a new report entitled, Workers’ Health and Safety Protections and Working from Home.

During the COVID-19 pandemic, working from home has become more prevalent across Canada. NUPGE has been closely watching the questions and considerations for workers and their unions. This latest paper digs deeper into the health and safety protections for those who are working from home.

What does OHS say about working from home?

The increased prevalence of WFH, and the length of time workers are doing it, raises questions about workers’ legal protections for occupational health and safety (OHS). The intersection of WFH and OHS protection is an underexplored topic that will likely present new legal challenges for workers and unions.

Surveying OHS legislation and case law in Canada, the paper identifies the legislative gaps and silences when it comes to WFH. WFH arrangements can make the application of existing OHS rules difficult, such as conducting inspections in a workspace that is also a private residence. In a number of provinces, WFH is addressed only in specific sections of the legislation, such as those regarding inspections.

Where the legislation is silent on WFH, such as in Nova Scotia and Newfoundland and Labrador, it is difficult to anticipate how the legislation will apply. In provinces like BC and Saskatchewan, governments have provided specific guidance on OHS and WFH, noting that many OHS rights are just as applicable in a home workspace as in a traditional workspace.

In Ontario, the OHS legislation outright excludes WFH situations. This raises concerns about the protection of workers and their access to remedies.

Grey areas for workers' compensation

The paper also surveys workers’ compensation legislation, Board policies and guidelines, and case law. They suggest that workers can still access compensation for workplace injuries while WFH.

However, there are cases of grey area when a worker is injured where the line between a worker’s personal life and work life is not clear. For example, a worker who gets hurt walking from their home workspace to their home kitchen might have a harder time making a claim than a worker walking from their office workspace to the office kitchen.

Analogies to other unique employment contexts

The paper identifies some examples analogous to WFH to better understand potential gaps and how existing OHS rules might apply to WFH.

For example, the experience of workers with what’s known as employment-related geographical mobility (E-RGM) may give insights for WFH contexts. Researchers have found that the effectiveness of both OHS and workers’ compensation frameworks are weaker for E-RGM workers. For example, because commuting injuries or deaths are not considered workplace health and safety concerns by OHS regulators in Canada, commuting accidents are usually not compensable in Canada as a workplace injury and workers are unlikely to have job protection if they refuse to commute for safety reasons.

This example shows how silence in the regulatory framework, as there is with WFH, can leave workers unprotected. Even if a worker is put in greater danger because of their working conditions, such as a worker who is WFH in a situation of domestic violence, the worker likely has little recourse to ensure job protection and safety at work.

Making sure workers don’t fall through the cracks

There continue to be many unknowns about applying existing protections to WFH arrangements, as well as gaps.

While there may be room to close some legislative and regulatory gaps, the Canadian Centre for Occupational Health and Safety recommends that employers and workers should have a written agreement about WFH to avoid complications and misunderstandings, to make clear to both parties who is responsible for what, and to ensure that workers’ OHS protections are not reduced while WFH.

Workers and their unions have a crucial role to play in identifying the gaps that exist in OHS protections for workers WFH, and developing solutions to ensure that workers’ health and safety is not sacrificed in WFH contexts.


NUPGE

The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 390,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. — NUPGE