Working From Home during COVID-19: The New Normal

Working from home: realities and concerns

The Covid-19 outbreak and lockdowns throughout the world have resulted in a larger-than-ever share of employees working from home. Many had previously undertaken long commutes on crowded buses and highways to cram into office towers in downtown canyons that blocked out direct sunlight. As such, work from home was a silver lining to the pandemic, a perk some hope will be continued once (if?) life returns to normal.

Another advantage in working from home is a more flexible work-life balance where some of the workday is spent rearing young children and that time is made up after-hours when the children are in bed.

Many workers have been asking for more flexible working arrangements for years and hope that a positive outcome of the lockdowns might be the elimination of “face-time” work, those long unproductive hours spent in the office that could be better spent caring for family and spending time with loved ones.

As restrictions are lifted in the coming weeks, employers and employees will have to adapt their old working arrangements to the new reality of social distancing. This may mean continuing work from home, having staggered schedules so not all workers are in the office at once, banning meetings of more than a few employees, and eliminating open-office and Agile workspaces.

Some issues that will have to be addressed range from the mundane to the dystopian; will I be able to help my child with her online school work during the working day; will I be paid overtime if I don’t have to punch in or out; how will my employer balance my right to privacy at home with the management prerogative to supervise my work?

Employee Surveillance and Privacy concerns

Privacy has been the biggest victim of the rise of Information Technology. Remote work from home will compound that trend. Employers believe it makes good business sense to monitor their employees and that it increases productivity. This is probably the main reason we still have to go to a physical office.

Technology makes anything possible, including worker surveillance. There are applications that take screenshots of your remote desktop at regular intervals and send them to your employer. A feature in Zoom alerted the meeting monitor if you weren’t paying attention. Yet another program can allow your supervisor to watch every click of the mouse and every stroke of your keyboard in real-time while you remotely connect to the computer in the office, without your knowledge. To paraphrase a standard call-centre axiom, in the future your life will be monitored for quality assurance and training.

What technology enables and what the law permits are two different things, of course. The advance of the right to privacy in the workplace is largely due to grievances lodged by unionized employees against their employer’s invasion of their privacy. Because of unions, for instance, we know that employers cannot systematically place a camera above each employee’s workstation to facilitate remote supervision. However, in the non-unionized context, workers lack the bargaining power to push back against employer demands until it is too late.

Typically, all an employee can do in the face of a severe invasion of privacy by her employer is quit and sue for severance. Potentially, she could also demand an amount because of the intrusion upon her seclusion, but court awards are low. In this regard, the lack of laws protecting worker privacy in the private sector in Ontario is doubly shocking and demands to be addressed. Only the government has the power to limit the surveillance of employees working remotely. While we may have thought that having our whereabouts tracked by a dating app was relatively innocuous in the aggregate, we bristle at the thought that an employer could peer into our home at the click of a button to make sure we are at our post and working.

Overtime rules still in effect

Invariably, while our employers will be able to track our every move, they will still not properly calculate our overtime entitlements. The Ontario Employment Standards Act, 2000 requires the employer and not the worker to keep accurate records of work for the purpose of the calculation of overtime pay time, even for work from home situations. The truth, however, is that this rule is most often observed in the breach.

If you believe that you are working more than 44 hours in a week and you are a worker who is eligible to receive overtime, your best solution is to note your start time, lunchtime, and end time every day on your calendar. If you work more than 44 hours in a week you are typically entitled to overtime pay at 1.5 times your rate of pay. This is true even if you are a salaried employee. If your employer refuses to pay you the hours you’ve worked, then you can ask the Ministry of Labour to investigate, at which point your diarized calendar will become an essential piece of evidence for your claim.

Child-care Complications

Many of us working from home must also raise our children who are studying from home because school, daycare, summer camp, and after-school programs have all been shuttered. How to manage the competing priorities of our work and our child-care obligations. In Ontario, workers have a right to be free from discrimination due to their family status. This means that if you have a child-care obligation that you cannot avoid and is serious (little league practice would not typically count), then your employer has a duty to accommodate you.

Normally, you must first try to accommodate yourself, by seeing if there is anyone, such as daycare or a family member, who can watch your children while you work. In these times, the reality is that we do not have a support network to turn to and your only solution is to request an accommodation from our employer. Your employer must accommodate you unless it results in undue hardship, a high bar. The employer is not required to give you your preferred accommodation, however. They may require that you make up the time, or take a pay cut for the hours you are missing.

The Ontario government is keenly aware of the plight of parents during the pandemic and has created the Infectious Diseases Emergency Leave under the ESA, which allows parents to take an indefinite unpaid leave should they be required to care for their children during the period of the lockdown.

The ways the coronavirus has impacted our lives are many-faceted and always changing. I hold out hope that life will return to normal, but it is more likely that our habits will be profoundly disrupted. What must not be forgotten is dignity during these times, the dignity of work and parenthood, the dignity of the individual. Technology may turn us into ones and zeros for its purposes, but we must ensure that technology serves our purposes first and convenience only after that.