Canadian Employment Law Today

August 11, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Home office modifications Question: Is an employer required to pay for modifications to an employee's home office that the employee needs because of a disability? Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com HARRIS AND COMPANY, VANCOUVER with Colin Gibson Answer: Many employees have been working remotely since the beginning of the COVID-19 pandemic, and some employers have closed their offices and required employees to work from home. While offices are now reopening and employees are returning, it is expected that remote work will continue to be prevalent in the post-pandemic world. Generally speaking, if an employee chooses to work from home and has the option of work - ing at the office, the employer will not need to pay for the furniture and equipment in the employee's home office. The situation can be different, however, if the employee is working from home at the direction of the employer or because of other circumstances beyond the em - ployee's control, such as a disability. Under the employment standards legislation in a number of Canadian jurisdictions, an em- ployer cannot require an employee to pay any of the employer's business costs. However, even where this type of prohibition exists, an employ- er can usually make it a term of employment on hiring that the employee must provide the tools or equipment they need to perform their du- ties, as long as the cost of operating them is paid by the employer. So, for example, an employee could be required to provide a laptop computer to work from their home office, but the employ - er would need to pay for any office supplies or other expenses incurred by the employee in the course of performing their job functions. If an employee normally works from the office, but is being required to work at home, the employee may be able to argue that it is un - reasonable for the employer to insist that the employee pay the cost of the equipment they need to work remotely. Because of this, many employers have been supplying their remote employees with such equipment. If an employee has a disability that requires modifications to be made to their office equip - ment or workstation, this will engage the em- ployer's duty to accommodate under human rights legislation, and will usually require the employer to provide or pay for the required. However, if the employer has already provided those accommodations for the employee at its office, it may be unreasonable for the employee to insist that the employer duplicate this at the employee's home, if working at the office is a reasonable alternative for the employee. And, of course, if an employee makes a disability-relat - ed accommodation request, the employer can ask the employee to provide medical informa- tion in support of the request. Employers should also consider whether their obligation under occupational health and safety legislation to ensure a safe work environ - ment applies to the employee's home office. In most jurisdictions, this obligation extends to wherever an employee is conducting work, including home offices. Ontario is a notable exception, in that its Occupational Health and Safety Act does not apply to work performed at home. Canadian HR Reporter, 2021 2 | | August 11, 2021 August 11, 2021 COMPANY'S on page 7 » Employer changes to approved vacation Question: Can an employer require an employee on an approved vacation leave to return early and discipline the employee if they refuse? Answer: In many workplaces, vacations are scheduled at mutually convenient times, with the employer retaining the right to approve or deny an employee's vacation request based on the operational requirements of the business, or in some circumstances to schedule the employ - ee's vacation unilaterally. In unionized settings, the vacation provisions of the collective agree- ment will usually deal with vacation scheduling and approval. Circumstances will sometimes arise where an employer needs to ask or even require an em- ployee to change their pre-approved vacation plans. Where this occurs, it will often be reason- able for the employer to offer to reimburse the employee for the travel or other expenses in- curred by the employee because of this change, and indeed this may be a requirement under employment standards legislation, the collec- tive agreement, or the employer's policy. Employers don't have an unfettered right to change an employee's approved vacation at the last minute, or to force an employee to return early from vacation. In Watson v. Summar Foods Ltd., an operations manager with 10 years of service was dismissed for insubordination when she refused to com - ply with the employer's request to cancel or shorten a previously approved two-week trip. In early 2004, the employee obtained approv- al from the employer's president to take two weeks' vacation later that year. After receiving the approval, she made plans to travel to Barba- dos to visit an ailing family member and attend to some pressing issues involving property she owned there. The employee and her husband booked flights and made other travel arrange- ments, and in accordance with past practice the president was to take over her duties during her absence. Shortly before the employee's trip was sched- uled to begin, the president contacted her and asked her to cancel or shorten her vacation. He offered to compensate the employee for her expenses, but when she asked if her husband's expenses would be covered as well, she didn't get an answer. Also, the president didn't explain clearly why he needed the employee to change her plans. The employee took her vacation and upon her return received a notice from the em - ployer stating that she had quit. The Ontario Superior Court found that the employee was wrongfully dismissed and award- ed damages accordingly. The court emphasized that time off was important for any employee and it was part of the employee's employment contract. Even if the employer had a legitimate concern and explained it to the employee, it wasn't reasonable to expect the employee to change her plans at the last minute when the employer should have had a plan in place to cover her absence, the court said, adding that the employee didn't quit but was fired. "It is important for working people to enjoy time off with their families or alone, in tropi - cal islands or at home, to 'recharge their batter- ies,'" said the court. "Even in the case of a small business such as Summar Foods, contingent arrangements should be in place to deal with such absences, whether planned or unexpected, to ensure that vacations are not arbitrarily dis - rupted." Employers must also ensure that they are complying with the minimum requirements of the applicable employment standards legisla- tion. Apart from Northwest Territories, Nuna- vut, and Yukon Territory, employees are entitled to take their vacation in continuous blocks of one or two weeks. Requiring an employee to re- turn to work in the middle of a vacation could violate these provisions. Employees must also take their vacation NOTICE REQUIRED on page 7 »

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