Since the beginning of the pandemic caused by COVID-19, remote work has become the norm for many companies. However, even when work is performed at the worker's home, the worker can still file a claim with Quebec’s workers’ compensation board (hereinafter, the “CNESST”) for an occupational injury if the employee suffers a work accident at home.

On December 3, 2021, the Administrative Labour Tribunal dismissed the appeal of an employer (hereinafter, the "Employer") contesting the admissibility of an occupational injury suffered by one of its employees working remotely after she fell down the stairs at home. The Tribunal also took the opportunity to recall the framework of analysis in matters of accidents occurring in the course of work.^[1]

The Facts

In this case, Mrs. Alexandria Gentile-Patti (hereinafter, the "Worker") holds the position of customer service agent for the Employer. She performs her duties from her home. The CNESST recognized that the Worker suffered an occupational injury when she fell down the stairs during her lunch break.

The Dispute

The Employer appealed the CNESST decision that accepted the Worker's claim. In particular, the Employer maintains that this accident did not occur in the course of work, since there was no connection between the activity of walking to get food and the Worker's work. The Employer also claims that it does not have any effective control over the Worker's other activities when she disconnects from her computer and over the manner the premises are organized, which is a matter related to her private life.

The Worker claims that her accident constitutes an unforeseen and sudden event that occured during the course of her work, since going to lunch constitutes, among other things, a comfort activity that benefits the Employer.

The Decision

In this case, the question was to determine whether the Worker's accident was an event that occurred in the course of work or not.

The Tribunal’s decision emphasized that a work-related accident is an unforeseen and sudden event that occurs in the course of or in connection with work. The Act respecting Industrial Accidents and Occupational Diseases does not provide a separate framework for analyzing the unforeseen and sudden event, whether it occurs in the worker's private residence or in the employer's premises. Accordingly, the Tribunal adopts the analytical framework established by case law for determining whether a sudden and unforeseen event occurs “in the course of employment”. This framework is based on the following criteria:

• the location of the event;
• the time of the event;
• the remuneration of the activity performed by the worker at the time of the accident;
• the existence and degree of authority of the employer or the subordination of the worker;
• the purpose of the activity carried out at the time of the event, whether it is incidental, accessory or optional to the working conditions;
• the relevance or relative usefulness of the worker's activity in relation to the performance of the work.

Although these criteria must be assessed in relation to each other, the Tribunal decided to pay particular attention to the last three. Moreover, according to case law, greater attention must be paid to the criteria of the purpose of the activity carried out at the time of the event. Specifically, the activity must be sufficiently work-related to allow a finding that it is not a personal activity.^[2] The Tribunal must determine the purpose of the activity carried out by the Worker at the time the event occurred.

In this case, the Tribunal declared that the Worker suffered an occupational injury: the context in which the accident occurred confirms the conclusion that it was an unforeseen and sudden event that occurred during work.

The Tribunal mentioned that if the Worker is at home on the morning of the event, it is to fulfill her professional obligations to the Employer. Moreover, the Worker must follow a precise schedule established by the Employer and her breaks are therefore part of the work schedule. Without a work schedule, the Worker's lunch break would not be the responsibility of the Employer. There is also a link between the disconnection of the Worker from the Employer's network and the work accident.

Finally, the Tribunal concluded that there is no reason to question whether the activity of eating lunch falls within the professional or personal sphere of the Worker and whether the employer derives some benefit from it. Indeed, the fall occurred during the Worker's walk to have lunch and not while she was eating.

Furthermore, the Tribunal does not accept the Employer's argument that the Worker's home is part of her private life and that it cannot be managed in any way by the Employer. This is not a case dealing with the Employer's obligations in terms of occupational health and safety under the Act respecting Occupational Health and Safety, but rather a compensation case. Finally, the Tribunal restated that there are situations where a worker may suffer an employment injury without the employer being able to manage the site. For example, in a convention hall.

Conclusion

This decision is a reminder that, despite the absence of control by the employer in the workplace, an employee can still suffer an occupational injury. However, in order for such a claim to be accepted, there must be a connection between the activity performed at the time of the accident and the performance of the work.

Furthermore, following the assent of the Act to modernize the occupational health and safety system on October 6, 2021, the Act respecting Occupational Health and Safety will apply even in the case of remote work. Thus, since October 6, 2021, the location where remote work takes place is considered a workplace within the meaning of the Act.

In this context, even if the work is performed in remote work, employers must maintain a clear policy of reporting work-related accidents and record them in a register in the same way as if an accident occurred in their establishment.

[1]Air Canada et Gentile-Patti, 2021 QCTAT 5829.

[2]Ib. ; Tremblay et Société des alcools du Québec, C.L.P. 287024-62B-0604, 21 février 2007, N. Blanchard