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May 6, 2022
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Many workers have been working from home during the COVID-19 pandemic and this may be a part of many people’s work arrangements in the foreseeable future, either fully or several days a week. In February 2022, almost two years into the pandemic, StatsCan reported that around 37% of workers in Canada continued to work primarily from home. A recent survey found that 43% of Canadian companies expect to have most employees working remotely at least two days a week. While working from home has created both benefits and challenges for employees and employers alike, it has also raised unique questions about workplace health and safety and worker compensation.

Air Canada et Gentile-Patti

A recent decision out of Quebec’s Tribunal administratif du travail explored and ruled upon some of these issues. In Air Canada et Gentile-Patti, the worker, a customer service agent for Air Canada, fell down the stairs at home after disconnecting from work for her unpaid lunch break. Air Canada argued that the fall did not occur at work and that it had no control over the worker’s actions when she was not at work on her computer. The Tribunal had to answer the question: was the worker “at work” when she fell down the stairs at home while going on her lunch break?

The Tribunal started by looking at the purpose of the activity being carried out and its connection with the performance of the work. It recognized that, although workers who work from home are often shifting between personal and professional spheres throughout the day, workers working from home should be protected in the same way they would be if they were working on their employer’s premises. The Tribunal also considered that the worker was home during her shift because of her professional obligation to Air Canada and that she was working a schedule that allowed her to take breaks at set times. The Tribunal ultimately found that the employee suffered a workplace injury and was entitled to compensation. 

An “accident in the course of employment” in Ontario

Similar issues were considered prior to the pandemic in other jurisdictions. In Ontario, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has adjudicated workplace injuries that happen at home the same as any other workplace injury. The policy on work relatedness explains that, in determining whether an injury by accident occurred in the course of employment, the Workplace Safety and Insurance Board (WSIB) will consider (1) where the accident happened, (2) when the accident happened, and (3) whether the worker was engaged in the performance of a work-related duty or in an activity reasonably related to the employment at the time of the accident.

Caselaw from the WSIAT adjudicating this policy suggests how a case such as Gentile-Patti’s might be decided in Ontario. The Tribunal has consistently followed the test set out in Decision No. 436, 1987 CanLII 2058 where the key question when determining whether a worker was injured in the course of their employment is “whether the activities of the worker at the time of the accident were reasonably incidental to the employment, or whether they represented a distinct departure from the scope of employment.”

An “activity reasonably incidental to employment” while working from home

In general, a worker who is injured while completing their work duties at home, just like a worker who is injured while working on their employer’s premises, will be found to be injured in the course of employment (see Decision No. 2352/05 and Decision No. 464/91). However, there are some grey areas when a worker is injured at home, especially when workers often move between personal and professional activities.

In Decision No. 2010/09, a worker injured her left shoulder when she fell on the stairs in her home. She was working at home at the time and had pre-existing accommodations that allowed her to work flexible hours and take frequent breaks. The worker suffered her injury on the stairs when she was taking a bathroom break from working on a work project. The Tribunal found that the worker was engaged in an activity incidental to employment at the time of the accident.

The Tribunal in Decision No. 1403/02 found that taking a break is necessarily incidental to the activity of being at work. A “brief interlude” of personal activity does not necessarily remove a worker from being in the course of employment. However, the Tribunal has noted that there will likely not be an employment nexus where workers are injured doing other activities that are further from the worker’s employment, such as slipping and falling in the kitchen while cooking supper (Decision No. 2010/09), falling out of bed while sleeping, injuring their back while clearing snow from their driveway (Decision No. 1056/08), or getting into a car accident when commuting to work (Decision No. 165/96).

What can you do if you’re injured while working from home?

While a worker may be entitled to benefits as a result of a workplace injury that takes place at home, it may be harder to prove than accidents in a traditional workplace. Workers working from home will likely not have a co-worker witness their injury and are less likely to inform others about their injury or seek medical attention. This is particularly true for injuries such as repetitive strain injuries (RSIs), injuries that result from the overuse of certain body parts and usually develop over time. It will be important for workers working from home to ensure that they are working in an ergonomically suitable home workstation, take notes and inform their supervisor of any symptoms or injuries they experience while working from home, and seek medical attention when necessary.

If you believe that you may be suffering from symptoms of an RSI or experience an accident at work while working from home, you should immediately report the symptoms and hazards to your supervisor and Joint Health and Safety Committee members, your health and safety representative, or a union representative if you work in a unionized workplace. 

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