The following paragraphs will cover some of the factors that my clients (employers and employees) have been facing since the beginning of the pandemic. What are the risks associated with teleworking, the legal framework in this area? And most importantly, what are the new ways for employers to ensure adequate working conditions for teleworkers?

Risk factors

Imagine being plugged into a screen all day, the concept of time and the periods of the day are inconsequential. From morning to night, you are in pajamas or sportswear; your dinner becomes your lunch and despite it being eight o'clock in the evening, emails continue to go bing! on your screen…

The National Institute of Public Health (INSP) has produced a document on the risks of teleworking on the psychological health of workers in the context of a pandemic. The INSP emphasizes that teleworking can lead to an increased workload, and that, more specifically, the following factors can have an adverse impact on the health of workers:

The risk of hyperconnection at work (e.g.: continuous teleconferences, cell phone constantly open, email or other requests arriving at unusual times);

The overflow of usual working hours because work is done from home;

Pressure to respond to requests (emails or otherwise) at unusual times; […]

Increased mental load due to the multiplicity of demands and the lack of resources to meet them (both professionally and personally);

The current legal framework

In the absence of definitive legislative and jurisprudential guidelines, the intersection between telework and health and safety remains unclear. The Occupational Health and Safety Act and the Act respecting industrial accidents and occupational diseases continue to apply to workers. The employer's obligations in the context of telework therefore remain the same as usual.

The employer must take the necessary measures to ensure the health and safety of its employees. To this end, the employer also has the obligation to help its employees reconcile work and family life.

Case law has also repeatedly recognised that a psychological injury resulting from an overload of work can be considered an occupational injury. The FB and Compagnie A case sets out the criteria and situations that will be considered as an overload of work:

■ A lack of help or support which leads to an overload of work while being combined with particularly stressful working conditions;

■ Insufficient training to properly perform the new tasks assigned, combined with the presence of other stress factors;

■ A lack of resources or changes in working conditions that lead to increased responsibilities with multiple tasks, associated with other stressors that maintain increased tension;

■ An overload of work due to the absence of staff while not having been able to benefit from appropriate training;

■ An overload of work attributable to a change in working conditions or a significant change in tasks.

The solution? Establish a telework policy

The best employers will try to facilitate telework by putting in place structures to ensure the maintenance of the physical and psychological health of its staff. The first step is to set up a telework policy, which outlines its terms and conditions, as well as the rights and responsibilities of each party. Among the elements to consider when drafting a telework policy by the employer are:

■ The specification of the number of working hours, as well as the schedule of the employee teleworking;

■ Accommodation measures, such as reduced working hours in exchange for reduced pay, or the establishment of flexible work schedules;

■ The employer's expectations regarding the use of his equipment and work tools;

■ Disciplinary measures that may be taken against employees who do not comply with established rules;

■ The terms of the employer's right to terminate teleworking;

Of course, each policy must be approached according to the reality and needs of the company.

Telework is likely to remain very present in the months and even years to come. The Quebec government plans to modernize labor laws to reflect this new reality.