man working from couch

If Yahoo CEO Marissa Mayer was hoping to make a bold, headline-grabbing statement with her recent decision to ban telecommuting—a popular buzz word for allowing employees to work from home some or all of the time—across her company, she achieved her goal with gusto.

The head of one of Silicon Valley’s earliest tech miracles, Mayer turned her back on the popular flexible work arrangement, recently announcing to employees in a since widely-circulated memo that telecommuting work arrangements would be eliminated effective June 1.

Some industry watchers called Mayer’s move a smart one that would ultimately improve collaboration and bring Yahoo’s workplace practices into line with other Silicon Valley tech giants, where working from home is often not an option.

But supporters of telecommuting widely derided the decision as indicative of the kind of old-school corporate thinking that’s long since fallen out of favour with more progressive, engagement-focused organizations. The argument is, if an employee is delivering their work correctly and on time, the location of the work shouldn’t matter. The opportunity to work in a way that meets the employee’s personal needs, the theory goes, makes for a happy, more productive workforce.

Is the same true for small to medium-sized businesses? That depends on the type of business and industry. But, from an employment law perspective, flexible work arrangements can, and do, work—and can even provide huge benefits to SMEs, ranging from improved employee retention rates to reduced overhead costs.

In Canada, the law is largely silent on the issue of flexible work arrangements, with legal requirements generally tending to be limited to an employer’s need to accommodate a particular employee—think a worker with a disability, for example. That’s why telecommuting needs to be governed by a carefully constructed, diligently enforced policy framework.

Want to make telecommuting work in your workplace? Use these tips to turn this flexible work arrangement into a growth-driving, talent attracting and engagement-nurturing competitive advantage:

Consider the workplace and industry: The decision to implement a telecommuting work arrangement will depend on the nature and type of work your company does. Not all positions are appropriate for telecommuting. Some positions, in areas such as construction or retail, for example, require direct, in-person contact with customers. Contrast that with jobs that offer a high degree of autonomy and are largely deadline-based, which makes telecommuting a viable option.

Being competitive in the industry is also important. After Yahoo announced its plans to eliminate telecommuting, a few Silicon Valley tech companies took to Twitter to market their flexible work arrangements in an effort to woo Yahoo employees. Beyond operational concerns, the ability to attract and retain top talent may very well dictate whether your company offers flexible work arrangements as an incentive to keep in step with competitors.

Create a comprehensive telecommuting policy: Any telecommuting work arrangement should be backed by a company policy explaining when, and under what circumstances, a flex-work arrangement will be granted and the protocols governing the program. The policy should clearly detail the rules of the program, such as who is eligible for telecommuting, the support that will be given to employees (technical or otherwise), the equipment used, hours of work, and safety/security of company data, as well as performance management rules, to name a few. Above all, the policy should be clear and transparent, widely communicated and fairly administered.

Keep it consistent: Fairness in the application of any flex-work program is critical to helping mitigate HR law liabilities. Why? Arbitrarily allowing some employees and not others to work from home can set unintended precedents that, when challenged in court, can cast an employer’s workplace policies into question by a judge or tribunal. Summarily cutting a staffer’s telecommuting privileges can also be problematic, particularly if that person has been working off-site for an extended period of time.

We’ve seen cases in which employees have successfully argued that being forced to work from their company’s office is tantamount to constructive dismissal because it involves the elimination of an established and accepted workplace practice. It also unnecessarily impacts everything from the employee’s lifestyle to finances (commuting is costly, after all). Once your company sets a telecommuting policy, adhere to it closely and apply it consistently across your entire workplace.

Don’t be dogmatic: Even if you make the decision to steer away from allowing telecommuting, an outright ban on the practice might not serve your best interests over the long term. That’s because there may be situations in which the work arrangement offers business benefits, such as playing a part in your emergency work/disaster recovery plan when commuting to a physical location is detrimental or difficult (e.g. inclement weather, storms, public transportation issues or disasters). It can also provide viable solutions for employees with accommodation needs. In such cases, an employee remains connected to work and business can continue to operate at or near normal levels.

Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.

More columns by Laura Williams

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