Excerpted from Lexology by Baker McKenzie

The COVID-19 pandemic has forced employers to require many employees to work from home. To assist employers in updating and implementing these measures, we recommend the following best practices.

•Establish and Maintain the Right to Impose Work-From-Home (“WFH”) When Necessary. To-date, most WFH policies and procedures (“WFH policies”) establish WFH as an employee privilege that can be exercised by the employee, within limits, subject to business needs. However, the pandemic has rendered many employers with no other option but to require certain employees to WFH. So, employers should review their employment agreements, collective agreements and WFH policies to ensure their ability to require employees to WFH is clear and not unduly restricted. If significant changes to existing WFH policies are necessary, employers should consider the possibility of constructive dismissal claims (for non-union employees) and grievances (for union employees), with regard to the unique circumstances of the pandemic which give rise to extraordinary legal considerations.

•Consider the Options for Each Employee. The pandemic will likely result in a recession, and the duration of government-imposed restrictions on business activity is currently unknown. Before implementing or adjusting WFH policies, employers should carefully consider whether WFH actually makes sense for each individual position in both the short term and the long term. Alternatives such as temporary layoffs, workforce reductions and restructuring should be considered, and updated legal advice should be obtained before proceeding with these options.

•Protect Intellectual Property & Maintain Privacy and Security. WFH policies should require employees to protect confidential information from inadvertent disclosure while working from home. Employers should set clear expectations, outlining particular steps employees are required to follow to protect confidential information. In defining “confidential information”, employers should include confidential and proprietary information to protect the business’s intellectual property, as well as customer, client and personal information to preserve business relationships and maintain compliance with privacy laws. Finally, and perhaps most importantly, employers should work with information technology professionals to ensure that the technology relied upon to facilitate WFH arrangements is up-to-date and secure, and can support the increase in usage that will result from a sudden increase in employees working from home.
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