Canadian Employment Law Today

Canadian HR Reporter, 2020 tocols for contacting the employer and evac- uating the home to a safe location in case of emergency, how to report work-related incidents or injuries, how education and training will be addressed and ergonomic considerations. The Government of British Columbia's web page, Safety Inspection for Working at Home, provides a link to a template telework agreement. The telework agreement appears to be a document for use by B.C. Public Ser - vice employees, although it is a helpful tem- plate for employers to work from to develop their own policies. Employees and employers in all Canadi- an jurisdictions should be mindful that, as noted above, the CCOHS encourages all em- ployers and employees to enter into a writ- ten agreement that sets out responsibility for health and safety issues and workers' com- pensation if a teleworker is injured when working from home to ensure that these em- ployees should "not be subjected to reduced health and safety standards at home." Inspection obligations limited: Supreme Court of Canada As noted above, federally regulated work- places are governed by the federal OHS laws set out in Part II of the CLC. In Canada Post Corp. v. Canadian Union of Postal Workers — one of the last decisions of the Supreme Court of Canada in 2019, the court clarified the extent of a federally regulated employer's inspection obligations under the CLC and held that it extends only to workplaces they control. Although statutes in other Canadian ju - risdictions may use different language when referring to the duty of employers to inspect workplaces, the Supreme Court's Canada Post decision may support employers in those ju- risdictions when they argue that their obliga- tion to inspect the workplace does not extend to workplaces outside their control, such as the personal residence of an employee. Bottom line for employers Employers are encouraged to carefully re- view the OHS legislation in the jurisdictions in which they operate to determine whether they explicitly exclude work performed in a private residence. In a jurisdiction such as Ontario where such an exclusion exists, it is clear that any inspection obligations that an employer may have will not apply to the worker's home. If the applicable statute does not contain such an exclusion, or does not exclude a worker's residence from its defini - tion of "workplace," the employer may rea- sonably argue that its obligation to inspect the workplace does not extend to workplaces outside its control such as the personal resi- dence of an employee. As noted above, the decision of the SCC in Canada Post may provide support for this argument. Further- more, it may be unreasonable to expect an employee to allow an employer to inspect their home during the COVID-19 pandemic or to expect an employer to inspect it. During the COVID-19 pandemic and otherwise, employers in all Canadian juris - dictions are encouraged to have a detailed Work from Home Policy and/or a Telework Agreement with employees working from home. Such an agreement should, among other things, indicate that employees are ex - pected to maintain their home workspace in a safe manner, free from safety hazards, and also set out responsibility for workers' com- pensation if the employee is injured while working from home. The objective of the policy or agreement should be to ensure that employees will not be subjected to reduced health and safety standards at home, and that the applicable workers' compensation entity will continue to be liable for work- related accidents that may occur while the employee is working from home. For more information, see: • Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 (S.C.C.). October 21, 2020 | Canadian Employment Law Today CREDIT: LEOPATRIZI iSTOCK ABOUT THE AUTHORS Rhonda B. Levy is a knowledge management counsel for Littler LLP in Canada, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or rlevy@littler.com. Monty Verlint is a partner with Littler LLP in Toronto, practising in all areas of labour and employment law. He can be reached at (647) 256-4506 or mverlint@ littler.com. Kate Bresner is an associate with Littler LLP in Toronto practising labour and employment law. She can be reached at (647) 256-4523 or kbresner@littler.com.

• Cover