Is 'Work from Home' here to stay?
Legal NotesWednesday, June 03, 2020
With Stephanie Ewbanks & Gavin Goffe
AS of June 1, 2020, the Government's general “work from home” COVID-19 order expired and has been replaced with what has been coined a “work smart, work safe” order. The Prime Minister (PM) has also urged that employees should be allowed to work from wherever they can be most effective, particularly if the nature of the work does not require physical presence at the office. Nevertheless, the Government has largely left the work from home requirement to the discretion of employers, subject to some exceptions.
It appears that some employees will be entitled to make a request to work from home, including persons who are immunocompromised (with a medical certificate) and those with no other suitable arrangements to care for their children, elderly or ailing family members. What is not clear at this point is the extent of the obligation the employer will have to grant that request and how that differs from the work from home order that has now expired. On what basis can these requests to work from home be validly refused? The PM announced that further details and measures will be included in the written orders, which were not available at the time of writing this article.
The expired order required employers to allow employees to work from home “if satisfied that an employee is able to discharge the duties of that employee from the employee's place of residence”. There was also a general requirement that “all persons who can work from home should do so”. It appears that the primary difference between the expired order and the new order is the removal of this general duty of employers to allow employees to work from home if the type of job is one which could be performed at home.
Simultaneously, the expired order required employers to permit to work from home any employee “who is able to work from home and who requests permission to work from home” in order to care for the elderly or ailing family members or the employee's child. In this regard, the new “work smart, work safe” order is very similar to what we had before, save that immunocompromised employees have now been added to the list. As it relates to persons 65 and over, the “stay-at-home” order remains in place and therefore it is important these employees be permitted to work from home, where possible.
The challenge on the employee's side has always been that it is the employer, and no one else, who must be satisfied that the employee is able to discharge work duties from home. From the employer's side, it's about balancing compliance with the order, increasing productivity levels, and guarding against abuse. There is also the question of the right to privacy. With limited exceptions, employees are not legally bound to disclose their medical conditions to their employer or their co-workers. Whilst the new order doesn't change that, from a practical perspective, many people who are immunocompromised will be faced with the difficult choice of disclosing their status or staying at home without pay. Likewise, parents with no suitable arrangements for childcare are likely to have uncomfortable discussions about their living arrangements with people who have no business knowing.
The Ministry of Health and Wellness has released guidelines, namely the 'COVID-19 Workplace Protocols', including practical measures such as flexible work sites, flexible work hours, virtual meetings and effective ventilation. Employers are therefore expected to implement various safeguards throughout their office space before reopening. For example, each employee should have at least 36 square feet of individual functional space to facilitate the required social distancing of 6 feet. Employers who are unable or unwilling to implement required safeguards may need to maintain work-from-home arrangements for some employees.
Given the real possibility of an upsurge or second wave of COVID-19, proactive employers may increasingly elect to embrace working from home on a wider scale as an effective strategy to ensure minimal business disruption as the pandemic progresses. Numerous employers worldwide have embraced a “new normal”, including increased remote working and staggered work hours, while recognising various benefits from these measures.
Employers are not generally required to permit employees to work from home, but circumstances may arise in which they will be required to do so, pursuant to the new work smart, work safe order as announced. Employers and employees are, however, otherwise free to agree on certain flexible working arrangements such as working from home, and some may find that it is an effective measure to facilitate business continuity and productivity while minimising health risks.
If embarking on these arrangements, it is recommended that the specific terms be discussed and agreed to in writing between employers and employees in order to provide adequate protection and clarity.
Gavin Goffe is a partner and Stephanie Ewbank is an asociate at Myers, Fletcher & Gordon, and they are members of the firm's Litigation Department. They may be contacted via firstname.lastname@example.org, email@example.com or www.myersfletcher.com. This article is for general informational purposes only and does not constitute legal advice.
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