Howard Levitt: How much control does a company have over its staff’s home office?

Employers may have to pay for home office expenses and can use webcams to ensure employees are productive.

With significant portions of the Canadian workforce being asked to work remotely, questions arise as to the extent an employer can encroach on their employees’ home office. Is it off limits as it’s part of the employee’s home in its entirety? Or how much of the home office belongs to the staff member when they go remote?

What is the employer responsible for in terms of the costs of home supplies? What (if anything) must the employer pay for? And what workplace policies now apply to the home office?

As dining rooms convert into makeshift workspaces, and heavy commutes become a stroll down the hall, you might assume that most employees can work effectively with nothing more than a laptop. It has become clear that, in order for employees to be productive at home, they must invest in new computer monitors, upgrades from their slow home WiFi, and perhaps office furniture better suited to a standard workday for that makeshift office.

If your employee can make a cogent case for having to purchase these items to do the work the employer is mandating that they perform from home — it may have to reimburse them for these items. In other words, employers cannot pass their business costs on to their employees.

The first step may be to look at the employment agreement or employment policies that govern reimbursement. If the policy has historically been to reimburse for reasonable expenses, with the COVID-19 pandemic, one should not be surprised that the definition of “reasonable” expenses will evolve to include certain home office items. If they are largely to be used for work (although admittedly the entire household will benefit from better WiFi), they are employment related expenses, and the employer should be prepared to pay for them.

Implementing a “home office” for your employees still means you have to keep them safe while “at work.” So if you put in place protective measures for employees, and the risk still applies while they are home — be prepared to shoulder those costs, too.

Employees should know that, where an employer reimburses an employee for the cost of work tools (e.g. a printer), or for capital expenses (e.g. a desk), the reimbursement paid to the employee is a taxable benefit to be included in that employee’s income. The employer providing the reimbursements will normally be entitled to deduct the full amount of the reimbursements as a business expense.

Where the employer provides the employee with a flat rate allowance for home office expenses, it will generally be considered a taxable benefit and that amount will be added to the employee’s income (Income Tax Act, s.6(1)(b)). If you and your employees disagree with what constitutes a workplace expense, the employee can still go ahead and attempt to deduct those home office costs under the Income Tax Act.

With employers paying for home office expenses, the next question is — how much control as the employer do you have over your staff’s home office? Which of your policies apply? What stays private in the home office? How can you effectively monitor your employees while they are at home, and not encroach on their personal lives?

Both the Employment Standards Act and Occupational Health and Safety Act fail to make any mention of an employee’s privacy that might be applicable to a work-from-home scenario. The best way to monitor a “home office” is to implement web-cam surveillance, sometimes referred to as “tattleware.” Employers can use the webcam (with help from platforms such as Zoom or Skype) to ensure their employees are being productive, and employees can still disable the use of such devices unless they are within a “work day” window, or unless they are being asked to meet “virtually.” There is little in the way of statutory or common law privacy rights in this area.

In asking yourself if your workplace policy will apply to a “home office,” ask yourself the following:

If a policy is being implemented in good faith and is related to a business need — you can likely apply it. As you encroach into the homes of your employees, be prepared to deal with challenges as to what qualifies as reasonable in terms of the applicability of a policy, even if you are footing the bill. There are few cases on point but the legal principles can be easily extrapolated from general principles of employment law.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.