The legalities of working from home

Note: this article is general information based on our research when it was first published in 2021. It is not legal advice, and laws change. Check with a qualified employment lawyer for your situation.

Why WFH legalities matter

During the COVID-19 health crisis, many employees across the US and Canada started working from home (WFH), out of obligation or by choice, and the trend continued long after.

Studies published at the time were encouraging. A Stanford study by Nicholas Bloom found that productivity went up, not down, with a 13% increase. And in a survey of 2,000 people reported by Employee Benefits, 75% of respondents said they were happier overall working from home.

Unprecedented circumstances led to unprecedented action, and some rules were stretched in favour of flexibility. As remote work becomes a long-term arrangement, employers, employees and contractors should understand the legal framework around it.

Working from home: the legalese, explained

Is there a right to work from home?

In the US and Canada, employees generally do not have a right to work from home: it is up to the employer. There are, however, situations where employees can gain that right:

• Human rights grounds: if an employee requests flexible working because of a ground protected by human rights legislation (such as race, gender or disability), the employer must make efforts to accommodate. Otherwise, it risks a human rights claim.
• When remote work is possible: employers should consider every request. They can refuse if the business would be negatively affected. Likewise, employees can refuse WFH and keep commuting, unless their presence in the office creates significant health and safety risks.
• FMLA (US): the Family and Medical Leave Act gives employees with certain medical conditions the right to request to work from home. The final decision still lies with the employer, depending on the impact on the business.
• Childcare and caregiving (Canada): employees are entitled to unpaid, job-protected leave if childcare is unavailable and remote work is not possible. Employers must consider caregiving requests but are not obliged to accept them. Provincial laws, such as Ontario's Employment Standards Act, set the details.

Employment contracts

In short, employment contracts largely govern the possibility of working from home, with little else in the way of legislation.

• United States: under the Fair Labor Standards Act, employers can implement remote work as long as they accurately record the hours worked by remote employees. Remote work policies should be stated in the employment contract, or added later if the original contract does not cover flexible working.
• Canada: rules vary by province. Ontario's Employment Standards Act applies to employees working inside or outside the province, whereas in Nova Scotia there is no legal distinction between home workers and office workers.

Office equipment

United States

According to our research, US employers have an obligation to provide IT and office equipment when employees do not have sufficient means at home. This can include computers, peripherals, telephony and, in some cases, broadband. Employers can buy and install the equipment at the employee's home, or provide an equipment allowance in the employment contract. Employees can also use bring-your-own-device (BYOD) policies where they exist.

Canada

In Canada, working from home during COVID was treated as an occupational health measure rather than a flexible work arrangement. Occupational health and safety (OHS) rules therefore apply, including equipment ergonomics, and employers must provide suitable equipment.

Section 125(1) of the OHS legislation covers "every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity", and paragraph (l) requires employers to "provide every person granted access to the work place by the employer with prescribed safety materials, equipment, devices and clothing".

In practice, the home office counts as a workplace when flexible working is in place, so the employer is responsible for providing computers, peripherals and telephony. Most provinces prohibit passing equipment costs on to employees. The cost of the home office space itself remains the employee's responsibility. As always, employment contracts can set formal arrangements that differ slightly from the law.

Organise hybrid work with Waldo

Once your remote work rules are clear, you still need to apply them day to day. Waldo, hybrid work software for Microsoft Teams, helps you do it: employees chat with Waldo to book desks and parking spaces, and see when teammates are in the office so they can join them. Admins can set work-from-home policies and office day limits that apply automatically.

Start with the free version, or book a demo to see how this flex office solution fits your hybrid work policy.