Working from home (remote working) is more and more popular. However, the law contains no official definition of ‘working from home’. Schedules, workplace accidents, employer surveillance… In theory, the same rules, adapted as necessary, apply to working from home as in the office. However, many questions remain. Especially during a pandemic.
1. What is remote working?
Labour laws don’t provide a definition of remote working (working from home or teleworking). However, it usually involves the following elements:
- You’re an employee, that is, you work under the control or direction of an employer.
- You use technology to do your work (for example, a computer, telephone, email, and the Internet).
- You work outside of your employer’s establishment.
Also, remote working can be full time or part time; every day or on occasion; permanent or temporary (for example, during a pandemic or to extend a maternity leave).
2. Can my employer force me to work from home?
As a rule, your employer can’t force you to work from home unless your employment contract says otherwise. Forcing someone to work from home can be considered a violation of an employee’s right to privacy.
However, if your employer does let you work from home, this right can’t be taken away from you at random. In other words, there must be a good reason requiring you to go back to working at the office (for example, if your home office setup doesn’t meet workplace health and safety standards).
Remote working is part of an employee’s working conditions, and your employer can’t change these conditions without your consent.
In exceptional situations, employers can decide to change their employees’ working conditions temporarily. This means employers can require employees to work from home if the type of work allows it. In addition, employers can stop employees who have symptoms from coming to work.
As of December 17, 2020, the government has decreed that office workers must work remotely unless their presence is essential for the continuation of the organization’s activities. If your employer is not respecting public health directives, you can file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST or labour standards, pay equity and workplace health and safety board). The CNESST has the power to investigate and fine employers.
If you or someone you live with has symptoms of COVID-19 or has tested positive for the virus, you must let your employer know and stay home.
To learn more, visit the website of the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST).
Once things get back to normal, employers can re-establish the working conditions that existed before the pandemic and welcome their employees back to the office. However, employers might decide to let some of their employees continue to work from home. If you’d like to continue remote working after the pandemic, you can talk to your employer about it.
3. Can I insist on remote working?
As a rule, you can’t insist on remote working if your employment contract doesn’t provide for it. The same applies if you have young children or are a caregiver. However, you can be absent from work 10 days a year to care for your family and the people close to you.
For more information, please read our article “Time Off Work for Personal and Family Reasons”.
If you’re about to accept a new job and would like to work from home, you can inquire about the employer’s policy about working from home.
Remote work is currently mandatory due to a government decree.
However, the fear of contracting COVID-19 has not yet been recognized as a valid reason for an employee to insist on working remotely. If you feel that your employer is not taking adequate measures to protect the health and safety of its employees, you can file a complaint with the CNESST by calling 1 844 838-0808 and selecting option 1.
4. Does my employer have to buy me the equipment I need to work remotely?
If you work from home, you’re going to need a computer, peripherals, office supplies, a desk and a chair. Is your employer required to supply these?
According to the law, if you make more than minimum wage, your employer does not have to provide you with the equipment you need to work remotely. They are also not required to reimburse you for equipment you have already purchased. However, if you are making minimum wage, your employer must give you the necessary equipment. Your employer must also give you the necessary equipment if buying the equipment would mean you make less than minimum wage.
However, some employers have decided that they will freely provide the necessary equipment due to concerns about information security and about the efficiency of their workers.
If your employer has provided equipment so you can work from home, you have a responsibility to take care of it.
You also have a duty to protect the confidentiality of your employer’s information, whether or not your employer provides the equipment. For example, you must maintain the confidentiality of telephone conversations, work documents, and any work-related information on your computer.
5. Can I claim specific tax deductions?
In some cases, you can claim tax deductions because you work from home. For example, if you bought office suppliers (paper, pencils, ink cartridges, etc.) used directly in your work.
If you set up a home office space, you might also qualify for certain deductions for heating, electricity, cleaning products, lighting, and minor repairs. If you’re a tenant, you might be able to claim a deduction for reasonable home office expenses in proportion to the amount of space your office takes up in your apartment. Homeowners can’t claim this deduction.
If you worked remotely during the year, your employer must complete and give you the federal tax form T2200 and the provincial forms TP-64.3 and TP-59.
COVID-19 Pandemic and 2020 taxes
If your employer has refunded some of your expenses for buying equipment you need for working from home during the pandemic, this isn’t considered a taxable benefit (up to a maximum of $500). But you must declare any amount above $500 as a taxable benefit. In other words, you must add this additional amount to the income you declare in your 2020 tax return.
Also, the governments of Quebec and Canada have provided a temporary simplified method for calculating expenses for employees who worked from home in 2020 because of the pandemic. You could be entitled to a tax deduction. To use the simplified method, you must have worked from home more than 50% of the time for at least four weeks without interruption in 2020 due to COVID-19. In this case you can claim $2 for each day you worked from home in 2020 because of the pandemic, up to a maximum of $400.
For some employees, such as tenants and employees who worked more than 200 days, it might be more advantageous to use the detailed method. You can use the federal form T2200S, which has been simplified due to COVID-19. You must also keep receipts for all home office expenses.
To learn more:
6. Should I advise my insurance company that I’m working from home?
You should generally advise your insurance company that you’re working from home. Your insurance company sets your premiums based on the risk of your overall situation. Insurance companies offering home and liability insurance consider that working from home increases your risk level, so you must declare this situation whether you’re a tenant or homeowner.
Due to the pandemic, everyone knows that many employees are working from home. However, it’s still a good idea to advise your insurance company even if some insurers have said this isn’t necessary.
Regardless of the pandemic, you must provide honest answers to any questions from your insurance company. So, if your insurance company calls to ask whether you’re working from home, you must tell them if you are.
7. Do I have to follow a dress code?
If an employer has a dress code and a policy concerning personal appearance, it will continue to apply if you’re working remotely. If there’s no dress code, you must still dress appropriately, especially if you have online meetings with colleagues or clients.
8. Can I change my work schedule?
You must respect the working hours provided in your employment contract, even if you’re working from home. All employees must be loyal and honest, and work the number of hours agreed to in their contract. On the flip side, your employer can’t require you to be available at all times, even if your electronic devices allow you to stay connected and work from home.
If you need more flexible working hours, you can try to work something out your employer. Make sure your expectations are clear. You should consider getting this new agreement in writing.
9. What are the rules for overtime?
The same overtime rules generally apply whether you work from home or in your employer’s establishment.
You should be paid overtime If you work more than 40 hours a week, with some exceptions. For example, an employer doesn’t have to pay overtime to an employee who works outside the employer’s establishment and the hours can’t be controlled. However, just because an employee is working from home doesn’t mean their hours can’t be controlled.
In one case, an employee working was working at home with their employer’s equipment. While working on a new project, the employee worked overtime. During this time, the employer didn’t verify the hours the employee was working. It was only when the employee requested to be paid for these hours that the employer learned and refused to pay. According to the tribunal, the employer was negligent because they did not supervise the employee’s working hours and did not follow-up with them. In this case, the overtime hours were not ‘uncontrollable’, the employer simply didn’t control them. The employer was forced to pay the employee for their overtime hours.
This means that when employees work from home, the employer must take measures to monitor the employees’ hours and make sure they stay within the limits. Employers could tell their employees that unauthorized overtime won’t be accepted. The employer must also put measures into place to monitor breaks and mealtimes.
10. What are the rules for absences and time off?
The rules for absences, time off work and vacation days are the same whether the employee works from home or at the employer’s establishment. If you need to take time off work, you must let your employer know why and for how long. In some cases, you must also provide a medical certificate.
To learn more:
- “Time Off Work for Personal and Family Reasons”
- “Uniforms, Meals, Coffee Breaks and Weekly Rest”
- “Maternity, Paternity and Parental Leave”
- “Maternity Leave for Abortions and Miscarriages”
- “Public Holidays”
- “Annual Vacation”
11. Am I protected in case of an accident or harassment?
You’re protected by workplace health and safety laws if you work from home. You could receive compensation if you are injured if an accident (a sudden and unforeseen event) that happened while working. What counts as an accident while working is interpreted very broadly. You could also receive compensation if you develop an occupational disease.
Both you and your employer must take measures to protect your health and safety.
Your home office must follow workplace health and safety standards. If this isn’t the case, contact your employer to figure out a solution. In theory, an inspector from the Commission des normes de l’équité, de la santé et de la sécurité du travail (CNESST or labour standards, pay equity and workplace health and safety board) is allowed to visit your workplace even if it’s outside the employer’s establishment. However, the issue of whether an inspection in an employee’s home violates the employee’s right to privacy hasn’t yet been raised in court. Your employer could also ask you for a picture to make sure the working environment in your home office is appropriate.
If your employer determines that your working environment doesn’t meet health and safety standards, they could ask you to work at their establishment.
To learn more, read our articles:
- “Workplace Accidents: Step to Take, Remedies and Compensation”
- “Working from Home: Workplace Accidents Can Still Happen”
The law provides protection against psychological and sexual harassment even if you work from home.
To learn more, read our articles:
Employers usually have a policy against the use of drugs or alcohol in the workplace or during working hours. This policy also applies to employees who work from home.
If you’re infected with COVID-19 and believe you were infected because of or during work, you could be compensated. To learn more, visit the website of the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST).
12. Is my employer allowed to monitor me?
Even while working from home, your employer has the right to monitor you and ask you for updates about your work.
There are, however, limits to your employer’s right to monitor you, such as your right to privacy. For example, using a computer supplied by your employer at home doesn’t automatically take away your right to privacy. Continuous video or audio monitoring of an employee while they work is generally considered unacceptable.
In general, the workplace is not considered a private space. However, your right to privacy is greater at home than it is at your employer’s workplace. This means that as a remote worker, you retain some right to privacy. Of course, because you are also working, this right to privacy can be limited by your employer’s right to monitor your work. The balance between these two rights is not clear and the courts are still figuring it out.
In one case, an employer was justified in installing software in employees’ computers to monitor them. The employer’s policy stated that the use of work computers and the internet must only be used for professional purposes during work hours. This meant that the employees could not have a reasonable expectation of privacy while browsing the internet at work. In addition, the surveillance was not continuous or targeted at a single employee. Finally, the employer’s surveillance was aimed at ensuring security and in reducing time wasted by employees.
Some of the rules explained in this article don’t apply to employees covered by the Act respecting labour standards.
To learn more, read our article: “Workplace Laws”.