Working from home and working too much: considerations for employers under the ESA

Statistics Canada reports that as of March 2020, almost 40% of Canadian employees have begun working from home as a result of the COVID-19 outbreak. That amounts to almost 5 million Canadians working from home. Even prior to the pandemic, there has been a growing trend for employees to telecommute – which is a fancy word for working without having to go to work.
Despite technological advances allowing for work-from-home arrangements, doing so is not without its challenges. For employers, it raises issues with supervision, management, and adequately communicating with employees. However, one issue poses a concern for employers and employees alike: working too much.

Ontario’s Employment Standards Act (“ESA”) provides maximum requirements for employee hours of work, rest periods, and days off. Under the ESA, employees are limited to a maximum of 8 hours of work per day or the number of hours established by an employer in a regular workday. In a week, the maximum number of hours an employee can be required to work is 48 hours (that is, without prior written approval from the Director of Employment Standards). As well, after 44 hours, overtime is due to the employee at a rate of pay 1.5 times more than the employee’s regular wage.

Most of this is general knowledge to many employers, but what is often forgotten is that the ESA also provides minimum requirements for breaks from work. Under the ESA, between two consecutive workdays, an employee must have 11 hours of consecutive rest. In a workweek, an employee must have at least one day off, and after two weeks, two days off. Even with an agreement in place approved by the Director of Employment Standards, this essentially caps the amount of work an employee can possibly work:

• per day at 12 hours (as the ESA provides two half-hour breaks every 5 hours, and the employee is still allowed 11 hours of rest); and,
• 6 days of work per week.

Why is this important to employees working from home? Given the nature of working remotely, the lines between the start and the end of a workday are often blurred. The fact that one does not have to be at work to work, means that employees may end up working longer hours than allowed for under the ESA. Take, for instance, an employee who starts her workday at 8 a.m., works sporadically throughout the day due to homeschooling obligations under the pandemic, and then is required to answer emails at 10 p.m., only to start work again the next day at 8 a.m.. This employee’s hours of work may unknowingly offend the ESA as she was not given 11 consecutive hours of rest. Similarly, without set hours, employees may be unknowingly working in excess of 44 hours, thereby obligating the employer to pay otherwise unapproved overtime pay. Note though, that managerial and supervisory roles are generally exempt from the above ESA requirements.

To help avoid violations, employers should consider developing a work-from-home policy that sets limits to hours of work. For instance, a policy may provide guidelines limiting an employee’s hours per day and the window of time in which they must be worked. Similarly, employees may be requested to take account of their hours of work, and immediately report any overtime hours.

It would also be of benefit for employers to open up the lines of communication with their employees with respect to hours worked. An employee may need to be accommodated while working from home, such as an employee engaged in homeschooling during the pandemic, and naturally, it would be reasonable for that employee’s hours to be sporadic and run past the typical workday. On the other hand, an employee with no such accommodation needs may be abusing a work-from-home arrangement by expanding her workday due to sporadic breaks to check Snapchat, run errands and indulge in a little bit of Netflix. In the end, communication is key.

Takeaways:

• Employers should be careful that employees working from home may (unknowingly) be working too much, and in violation of the ESA
• Employers and employees may benefit from a detailed policy that provides work-from-home guidelines