Canadian Lawyer

February 2021

The most widely read magazine for Canadian lawyers

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Page 6 of 35 5 ongoing work-from-home arrangement, they should have a written policy with the right to rescind the arrangement if they decide that an employee is abusing it. While the requirements of employers to pay for office expenses can vary in each prov- ince, Munroe says he also advises employers in B.C. to consider an allowance for working from home, since s. 21(2) of B.C.'s Employ- ment Standards Act says an employer "must not require an employee to pay any of the employer's business costs except as permitted by the regulations." Some employers may decide that employees must return to an office, which lawyers agree they are entitled to do. But until the population is fully vaccinated, employees may request accommodations based on their individual circumstances. Gary Clarke, the Calgary-based co-head of the employment & labour group at Stikeman Elliott LLP, says employers are going to have to deal with accommodation requests on a case-by-case basis. "If they ultimately find they are engaging with a prohibited ground of discrimination, they are going to have to work through the Meorin test including demon- strating that they cannot accommodate the "If they ultimately find they are engaging with a prohibited ground of discrimination, they are going to have to work through the Meorin test." Gary Clarke, Stikeman Elliott LLP employee without suffering undue hardship." The test comes from the 1999 Supreme Court of Canada Meorin decision that set out an analysis for determining if an occupational requirement is justified. Forcing employees to return to the office will also require vigilance in avoiding sick employees in the workplace. "The effects of COVID are really never going to disappear. I think employers are for now and forever going to be super vigilant about cleanliness and disinfecting and just being so highly attuned to ensuring that people are not coming to work sick," says Springer. Patrick Essiminy, head of Stikeman's employment and labour group in Montreal, says offering remote work is now seen as a competitive advantage for many businesses in Quebec. "What we are seeing now among our clients is that this has now become a retention and engagement issue. What was an impro- vised scenario in response to the pandemic is now going to become a structured scenario keeping in mind the labour standards [and] health and safety acts." WORK-FROM-HOME CONSIDERATIONS Employment lawyers flag the following issues with 'work-from-home' arrangements: duty to inquire about mental health, discrimination and harassment under human rights legislation monitoring hours of work to avoid overtime claims equipment costs shifted to the employees employees requesting T2200 tax forms to deduct work-from-home expenses

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