One evolving issue in the new hybrid or remote workplace is the balance between privacy and the employer’s obligation to keep workers safe when they are working from home. The application of occupational health and safety legislation to workers homes differs from province to province and there is debate around how far an employer is obligated to intrude into a home workplace to keep an employee safe. Where an employer must comply with workers compensation legislation, questions have arisen regarding employer liability arising from accidents in a worker’s home. There are now a handful of cases that have considered that issue with some interesting (if not inconsistent) results. We discuss three of those cases in this article.
a) BC Worker’s Compensation Appeal Tribunal
In A2201796 (Re) (BC Worker’s Compensation Appeal Tribunal, February 21, 2023) a customer service agent filed an injury compensation claim with the WorkSafeBC Board after they fell down the front steps of their house whilst taking a coffee break, injuring their ankle in the process. The Board denied their claim on the basis that the injury did not occur while the employee was performing work-related activities. The employee appealed the Board’s decision and argued that they had been encouraged to work from home due to the safety concerns related to the COVID-19 pandemic. In their submission, they emphasized that the injury occurred during the “course of their employment” as their home had become the main location in which they were required to perform their work:
As [the worker] was being encouraged to work from home by her manager for safety reasons due to the COVID-19 pandemic and the employer had made all of the necessary arrangements to allow her to do so, it is submitted that it is unfair to rely upon the fact that her injury occurred during a work from home shift and not on employer premises as a determinative factor in denying her claim. Had a similar injury occurred on a day that she was working at the office (for example, if she had lost her footing and fallen while walking to the office lunchroom or out the front door of the office to take a break) her claim would likely have been accepted.
The Compensation Tribunal rejected the employee’s appeal and found that their employment was not a “causative significance” (i.e., more than a trivial or insignificant aspect) of their injury. The Tribunal acknowledged that an employer may be liable for an injury that occurs during “work-related travel”, however they noted that an employer could not be expected to exert control over an employee’s home, outside of their immediate home workspace. In this respect, they concluded that an injury which occurs within an employee’s “private sphere” does not give rise to Occupational Health and Safety obligations:
In simplest terms, if the employer requires that work be done in a certain area, or that certain work activities be performed, then the employer is required, under Part 2 of the Act, to ensure that the working areas are kept safe and that work is carried out in accordance with the requirements of the Act and the Regulation. The test for assessing the extent of an employer’s obligation in this regard is to consider the degree of control that the employer exercises over the work being performed or over the physical location of the work. If an employer exercises control, then it is in a position to ensure safety. If it does not exercise control, then it does not have the same ability to ensure safety.
…There is no suggestion that this employer exerted any degree of “control” over the front steps to the worker’s home at the time of injury. The front steps were far removed from the work area, and were unrelated to the work area, or to the work that the worker did for this employer. There is no suggestion that the employer was granted (or even accepted) a right to inspect the worker’s front steps, or the rest of her house, to ensure compliance with the Act or the Regulation. The employer did not direct the worker to use those steps on that occasion (or on any occasion).
Furthermore, the Tribunal emphasized that the employee was disconnected from their workplace at the time of their injury as they had left their home office location to begin their break:
If the worker in this case had been injured while using her work computer for purposes of her employment, there would be little doubt that her injury would be compensable, in accordance with policy item C3-14.00. In such a case, the injury would be related to the work, involve equipment provided by the employer, occur during work hours, and, arguably, also occur on the employer’s “premises.” In that situation, it would be reasonable to construe the “employer’s premises” as the small portion of the worker’s home over which work is performed (such as a home office), which would certainly include the computer station.
The tribunal noted that extending an employer’s liability to an employee’s home may have unintended consequences on the rights of the employee in their private sphere.
This is another reason why, for injury cases involving workers who work at home, the concept of the employer’s “premises” should be limited to the areas in which work is actually conducted, and over which the employer has a reasonable measure of control, in order to infringe upon the principles of autonomy and privacy in the worker’s home space as little as possible.
b) Québec Tribunal Administratif du Travail
In, Air Canada and Gentile-Patti (QCTAT, Dec 3, 2021) the Québec Administrative Labor Tribunal had a notably different interpretation of occupational health and safety requirements. In this case, a customer service agent was injured after falling down the stairs of their home whilst heading to their lunch break. The employer argued that this could not be classified as a workplace injury since the fall occurred outside of the employee’s immediate home office environment. They restated the opinion of the BC Compensation Tribunal, and argued that they could not be expected to have any control over the areas outside of the employee’s home office (translated to English):
Air Canada does not question the occurrence of an unforeseen and sudden event. Moreover, they do not dispute that Ms. Gentile-Patti’s injuries are related to this unforeseen and sudden event. However, Air Canada maintains that this fall did not occur while at work. According to Air Canada, the fall resulted from the exercise of a personal activity unrelated to work. Air Canada also claims that it had no effective control over Ms. Gentile-Patti’s other activities when she disconnected from her computer and over the running of the premises, which is a matter of her private life.
In rejecting the employer’s argument, the Tribunal considered whether the injury occurred within the public or private sphere. However, unlike the BC Tribunal, the Quebec Tribunal found that the purpose of the activity in which an employee is injured is the determinative factor in characterizing an employment-related injury (translated to English):
If the purpose sought by the activity carried out does not fall within the framework of the activities, expectations, concerns or objectives of the employer, it will be part of the personal sphere of the worker and cannot be considered as having occurred in the course of work.
The reason why, on this September 25, 2020, Ms. Gentile-Patti is at her home between 6:00 a.m. and 1:00 p.m., is because she must fulfill her professional obligations with her employer Air Canada.
Consequently, the fall of Ms. Gentile-Patti, which occurs a few moments after she disconnected herself from her workstation to go to dinner, represents an unforeseen and sudden event that occurs during work. She therefore suffered an employment injury.
Interestingly, the same Quebec Tribunal reached the opposite conclusion in Allard and Promutuel Horizon West (QCTAT, 2023) where a customer service agent fell down the stairs of their yard, as they returned to their home office at the end of their lunch break (translated to English):
The worker eats her meal. At the end of her meal, she brings her crockery and cutlery inside and goes out into her yard to enjoy the rest of her meal break. It was then that her cell phone fell down the stairs and it was while trying to pick it up that she also fell and injured her ankle.
The employee cited the Gentile-Patti decision in support of their argument that the injury occurred during the course of their employment. The Tribunal distinguished this case, on the grounds that the purpose of the activity in which the employee was injured brought their injury into the “personal sphere”:
Thus, the place of the event is the exterior staircase of the worker’s residence which leads to her courtyard and not the interior staircase which leads to her office in the basement. As for the time of the event, it is right in the middle of her meal period when, having finished eating, she can take advantage of the time that remains in the comfort of her yard. She has not just left her professional sphere as in the Air Canada and Gentile-Patti case which she cites in support of her position. In this case, the worker fell “a few moments after unplugging from her workstation to go to dinner ”. The circumstances are similar in the other case cited by the worker. Indeed, “the event occurs in the cafeteria in the first minutes of the start of a meal break ”.
The evidence also confirms that the meal break is unpaid and that the employer does not require the worker to be available. She is disconnected from the employer’s network during this break, so there is no relationship of subordination. It is also admitted that the cell phone that the worker was trying to pick up when she fell is her personal device and is not used in her professional duties.
The Tribunal concludes that the fall of the worker occurred in her personal sphere and that it therefore did not occur during work. The worker, therefore, did not suffer an industrial accident within the meaning of the Act.
Key Takeaways:
- The “public sphere” in which an employer is liable, can include an employee’s home office, as well as the areas of the home in which an employee is required to inhabit due to their employment.
- Deciding where to draw the line between the public and private sphere in an employee’s home is difficult and fact specific.