With a recent spike in COVID-19 cases reported throughout B.C. this past week, the prospect of winding down work from home policies looks increasingly unlikely for companies that can continue to depend on a remote workforce.
Statistics Canada data from earlier this month revealed 32.6% of businesses report 10% or more of workers were working remotely as of May 29 — almost double the amount (16.6%) doing so in February.
That national stats agency found 22.5% of businesses continue to expect at least 10% of workers to continue working remotely once the pandemic is over.
As such, the potential for businesses to monitor company-issued devices and employee internet activity at home has turned into a “hot-button issue,” according to employment lawyer Catherine Repel of Vancouver’s Clark Wilson LLP.
“There’s no blanket yes or no’s whether its permissible or not,” she said during a Tuesday (July 21) Zoom seminar.
“Whether monitoring would be found to be something permissible or whether it might be considered a breach of privacy depends on several factors.”
Repel said employers must consider what policies have been clearly spelled out to workers, the ownership of the equipment being used for work, the typical use of the equipment and the circumstances of monitoring.
“The ultimate question, if there is an issue raised about whether any monitoring is a breach of an employee’s privacy, is whether the employee has or had a reasonable expectation of privacy in the circumstances,” she said, adding it’s the totality of circumstances that are looked at when determining what’s reasonable.
“There is quite a high concern of privacy rights, even in the employment context.”
Repel said it’s essential that workers are made aware that their online and computer activities are being monitored.
“Polices are key. They can be a really good backstop to potential privacy complaints if it can be shown that the employee was put on notice that there would be monitoring and that they were informed for the purpose of that monitoring,” she said, adding employers should be upfront about outlining whether the monitoring is being done to track performance, protect business interests or for security reasons.
“Definitely a good idea to seek legal advice if you have more specific circumstances applicable to your workplace.”
For those businesses now bringing employees back into the workplace, the potential for video surveillance opens up different issues for employers to navigate.
Repel said video surveillance is not considered an appropriate method by which to manage employee productivity and performance.
“So if that’s going to be the reason why you want to bring it in, you’re really going to want to rethink that plan,” she said, adding employees should be informed of whether cameras are being deployed and what their purpose is.
“Cameras in the workplace should only be used if there’s a need for legitimate security purposes, and as such they should be directed primarily at areas of access such as entrances, exits, rather than on areas where employees work. And they certainly shouldn’t be focused on private areas such as washrooms and change rooms.”
