Working Remotely Or 'Remotely Working'? What Every Employer Should Know (And Do)

It can be called many things: working from home, working remotely, telework, telecommuting, etc. But the result is the same — an employee performs their duties outside of the workplace including, in many cases, from their home.

There may be sound business reasons for allowing employees to work remotely, but what are some of the legal considerations? This article covers some essential legal issues every employer should know about and policies that should be adopted on remote working arrangements.

Do employees have a right to work remotely?

No. An employee does not have an inherent right to work from home or other location.

Employees may, however, become entitled to work from home by the terms of their contract, a workplace policy, or if management has agreed to or tolerated the practice. A right to telecommute may also arise if it is part of an accommodation under human rights law (e.g. the employee has a disability arising from a physical injury limiting mobility, or must be home to help look after an elderly relative1), subject to undue hardship on the employer.

Employers should use clear, objective criteria to decide who can work from home. If arbitrarily applied, the policy may lead to claims for discrimination (e.g. disability, gender, race, ethnic origin, etc.) and possible legal action.

Can employees work from anywhere they want?

An entitlement to work remotely does not give employees freedom to work wherever they want. Absent a workplace policy or agreement to the contrary, the employer still has the authority over where work is to be performed.

This may be an issue if an employee wants to use multiple locations (e.g. home and cottage), or moves to a location not suitable to the employer (e.g. different time zone, limited access to technology).

If a policy or agreement is silent on location, it can open the door for an employee to work from different locations than originally contemplated — within reason.

In Ernst v. Destiny Software Productions Inc. (2012 BCSC 542), the employer, based in B.C., entered into an agreement with an employee, who lived in Calgary, allowing him to work remotely. The agreement did not specify location for working remotely. The employee interpreted this to mean 'anywhere' and relocated to Cabo San Lucas, Mexico. He was terminated when he refused to return to Canada and sued the employer. Appropriately, the court held that this was far beyond the employer's expectation and dismissed his claim for wrongful...