The Internet and other technology have made “telecommuting”—that is, working from home rather than at the company’s facility either full- or part-time—a viable option for many workers. The desire to cut greenhouse gas emissions and protect the planet has made it an attractive one as well. In fact, according to Statistics Canada, there were an estimated 1,322,000 telecommuters in Canada in 2005.
But the rise of the telecommuter also represents a conundrum for safety coordinators. The current OHS laws weren’t written with the telecommuter in mind. They were designed to protect individuals who work in factories, construction sites, mines and other industrial workplaces that employers control. But although an employer’s duty to protect workers in workplaces that it controls is clear, how does that duty translate to workers who work from home, in a setting beyond its control?
This article will answer that question. We’ll explain what, if anything, the OHS laws say about protecting telecommuters and where within the laws a duty to protect such workers may be implied. We’ll also explain how your company can comply with its legal obligations to telecommuters and ensure that they work safely from home. And there’s a chart that tells you what language in the OHS law in each jurisdiction might apply to telecommuters.
ONLINE RESOURCE: Click here to find a home office safety checklist created by Alberta Employment and Immigration that you can adapt to conduct a hazard assessment of a telecommuter’s home office.
Defining Our Terms
When workers work from home, it’s usually called “telework” or “telecommuting.” We’ll use the term “telecommuting” and its variations throughout this article.
What The Law Says
The goal of the OHS laws is to protect workers’ health and safety. The specific measures that employers are required to take are set out in the OHS regulations and are generally based on particular types of hazards, such as fire or machines, or activities, such as excavation and work in confined spaces. Because many of these hazards and activities aren’t an issue for workers who work from home, the regulations covering them are irrelevant to telecommuters. Thus, for example, measures employers must take to protect workers from fall hazards when using scaffolding typically won’t apply to telecommuters.
On the other hand, although a home office is less hazardous than a factory or construction site, it’s not totally devoid of dangers. Some of the hazards covered by the OHS regulations are also present at a telecommuter’s home, including fire, electricity, ergonomics hazards, etc. Do the OHS laws require employers to protect their telecommuters from these hazards?
Unfortunately, the OHS laws don’t specifically answer this question. You won’t find the word “telecommute” or any of its variations in any jurisdiction’s OHS acts or regulations. But if you know where to look, you can find clues within the law or other guidance on how the requirements in the OHS laws apply to individuals who work from home. In fact, with one notable exception—Alberta—a case can be made that Canadian employers do, in fact, have an obligation to protect telecommuters from workplace hazards. How you’d make that case depends on where in Canada your company is located.
The 2 Provinces that Directly Address the Question
AB and NS are the only two jurisdictions that have directly tackled the issue by publishing guidance explaining whether the OHS laws apply to telecommuters. The provinces take opposite sides of this issue.
In Alberta, the OHS laws don’t apply to telecommuters. Explanation: Alberta’s OHS Act requires employers to protect “workers,” defined as persons engaged in an “occupation.” It also requires employers to take certain steps with regard to a “work site,” which is defined as a location where a worker is or is likely to be engaged in any occupation [Sec. 1(cc)]. The definition of “occupation” specifically excludes work in, to or around a private dwelling performed by the dwelling’s owner or occupant [Sec. 1(s)(ii)]. The OHS Code 2006 Explanation Guide confirms that the OHS Code and regulation don’t apply to “workers working in their private dwellings.” Additional confirmation was issued in July 2008 in the form of a bulletin from Alberta Employment and Immigration saying that “Alberta’s OHS legislation does not apply” to workers working from their homes (emphasis in original) [http://employment.alberta.ca/documents/WHS/WHS-PUB_li028.pdf].
Nova Scotia has also issued guidance indicating whether its OHS laws apply to telecommuters. The Reference Guide to the Occupational Safety General Regulations states that “employers are held responsible for health and safety at all places where their employees work. This includes the employees’ homes” [www.gov.ns.ca/lwd/healthandsafety/docs/OccupSafetyGenRegRefGuide.pdf]. So in Nova Scotia, the OHS laws do apply to telecommuters.
The 12 Jurisdictions that Don’t Directly Address the Question
In the other 12 jurisdictions, the question of whether OHS laws apply to telecommuters isn’t addressed in either the laws or government guidance. In other words, nothing says the laws do apply to telecommuters and nothing says they don’t. So where does that leave employers in these jurisdictions? When laws don’t include provisions that expressly deal with an issue, you need to check the provisions that they do include and try to interpret how they apply to that issue—in this case, the question of whether OHS laws cover telecommuters. Or if you don’t feel like undertaking this chore, read on.
The OHS laws don’t explicitly say that employers have a duty to protect telecommuters but they may imply it. The source of an implied duty to protect telecommuters can come from a number of provisions within the OHS law:
Definition of “workplace.” OHS laws generally require employers to protect workers from hazards found at the workplace (or worksite or place of employment). The definitions of these terms are typically broad enough to include a worker’s home office. For example, BC defines “workplace” as any place where a worker is or is likely to be engaged in any work [Workers’ Compensation Act, Sec. 106]. And NL defines “workplace” as a place where a worker is engaged in an occupation [OHS Act, Sec. 2(n)]. If a worker works from home, then his home—or at least his home office—would likely be considered a workplace under OHS law.
In addition, in some jurisdictions, such as BC, MB and PEI, the OHS laws acknowledge that a home can be a workplace. This acknowledgement is contained in the section of the OHS law that restricts the authority of safety officials to enter and inspect private residences that are used as workplaces. So the argument could be made that the legislators who drafted these laws understood that workplaces could include a residence and that they intended workplace health and safety requirements to apply to such residences, including a telecommuter’s home office.
Definition of “worker.” The OHS laws cover “workers,” typically defined as including a person who performs a service for an employer for pay. Clearly, telecommuters would qualify as workers under this definition and consequently may be entitled to protection under the OHS laws, particularly if they’re exposed to hazards addressed by those laws. For example, the requirement to train workers in fire evacuation procedures could cover a telecommuter who works from home, depending on how the regulation is worded.
Duty to protect workers who work alone. The OHS laws of nine jurisdictions—AB, BC, MB, NB, NT, NU, PEI, QC and SK—impose a specific duty on employers to take steps to protect workers who work alone or in isolation. “Working alone” is generally defined to mean that the worker is the only worker at that workplace in circumstances where assistance isn’t readily available to the worker in case of injury, sickness or other emergency. Many workers who telecommute work by themselves. Thus, the working alone requirements would likely apply to them, especially if they work in an isolated setting where emergency assistance isn’t readily available.
General duty. Every jurisdiction’s OHS law includes a “general duty clause” requiring employers to provide a reasonably safe workplace and protect workers from foreseeable hazards that can cause injury or death. This language presumably applies to all workers—regardless of where they work. So it should apply to workers who work from home.
Other provisions that may apply to telecommuters. The sources of an implied duty to protect telecommuters discussed above appear in all or most OHS laws. For example, all jurisdictions include a general duty clause in their OHS law and most define “workplace” and “worker” elastically enough to include a telecommuter. But some OHS laws also include particular provisions that seemingly could have bearing on whether OHS duties apply to telecommuters:
Workers’ Compensation
Even if your jurisdiction doesn’t apply its OHS laws to telecommuters, employers have an incentive to ensure the safety of such workers. Why? Because workers’ compensation provides benefits for workers who suffer injuries that “arise out of” or “in the course of” their employment. So coverage of injuries is generally a question of what the worker was doing when he was injured—not where he was located when he was hurt (although location may be a factor in determining if the injury was work-related.) Thus, an injury suffered by a telecommuter while working from home would likely be considered work-related and covered by worker’s comp. As a result, your company can reduce its workers’ comp costs by taking steps to ensure the health and safety of telecommuters.
How to Comply
The upshot of the analysis so far is that, in most jurisdictions, it’s likely that your company has a duty to protect telecommuters. Your company also has a financial incentive to ensure the safety of such workers even it doesn’t have an express or implied duty to do so. In general, to comply with this duty, you should do the following:
Conduct a Hazard Assessment
The hazard assessment is a core safety tool. So the first thing you should do to protect telecommuters is conduct a hazard assessment. That is, you should inspect the worker’s residence and determine if there are any hazards to his health or safety. Nova Scotia’s Reference Guide to the Occupational Safety General Regulations offers helpful guidelines on how to do so.
According to the Guide, employers should inspect the telecommuter’s work area and identify health and safety hazards with exactly the same degree of comprehensiveness as it assesses hazards in the work areas of its own facilities. But it adds that the employer is only responsible for the work area and those aspects of health and safety that arise out of the job. In other words, you don’t have to inspect rooms the telecommuter doesn’t work in, such as bedrooms. The Guide also clarifies that employers aren’t responsible for hazards arising from activities outside of the work relationship, such as unsafe lawnmowers and child safety issues.
Hazards to look for or examine include:
ONLINE RESOURCE: Click Here to find a home office safety checklist created by Alberta Employment and Immigration that you can use to conduct a hazard assessment of a telecommuter’s home office.
Set Up a Communication Protocol
Although telecommuters generally aren’t at high risk of an injury or workplace violence, the fact that they work alone makes them more vulnerable than workers who work alongside co-workers who can come to their aid if they get into trouble. So set up a communication protocol that requires telecommuters to maintain regular contact with their supervisors.
Apply Company Safety Policies to Home Workplaces
Make sure that telecommuters understand that even though they’re working from home, the company’s OHS policies still apply. For example, state that telecommuters must comply with all safety rules and report any workplace injuries or illnesses.
Insider Says: For additional information on telecommuting, see www.ivc.ca, a website shared by InnoVisions Canada, telework and flex-work consultants, and the Canadian Telework Association, a non-profit association dedicated to promoting telework.
Conclusion
As safety coordinator, your job is to ensure that all workers are protected when performing their jobs. Ensuring the safety of workers in the workplace is hard enough; ensuring the safety of workers who work from home is more challenging. The good news is that home offices generally pose fewer hazards than, say, factories or construction sites. So although the company does have to take certain steps to ensure the health and safety of telecommuters, doing so shouldn’t be an arduous task.
Loading ...
