It is clear that workers are starting to get “Zoom fatigue” and that experts agree that one treatment for this condition is switching off the camera.
Even still, some employers still force their employees to leave the camera on for all Zoom meetings regardless of importance.
Thus, a legal issue arises. Can employers do that? Can an employer force an employee to use a camera all the time for every single Zoom meeting?
The simple answer is, unfortunately, yes (in most cases). Although it is ill sighted and non-inclusive, generally an employer can force an employee to always turn his camera on.
However, employment law, privacy law, health and safety law and human rights law are evolving, and a few caveats listed below discuss when forced cameras could be found to be unlawful.
Regarding employment law, it is well established that employers have broad discretion to manage as they please.
Just like how your employer could force you to attend an in-person meeting at work before, your employer can force you to turn on your camera for a virtual meeting now.
Technically, under employment law, just like with all other employer requests, if an employee does not agree to turn his camera on, it is insubordination, and they can be disciplined or terminated. Still, termination for such a transgression would be extremely rare, and I would suppose that ninety-nine times out of one hundred, a termination for a failure to turn on a camera would be a termination without cause, not for cause, in the eye of any court.
On the flip side, employees can, of course, quit their job if always having to turn their camera on is not acceptable to them. This is a real risk for employers, so they should balance their demands for Zoom meetings if society is going to continue working from home. People are overworked and stressed.
Regarding privacy law, employees generally have no expectation of privacy at a workplace meeting whether that meeting is in the office or not. Plus, there is not even a privacy law statute regulating Ontario workplaces, so there is no legislation that contemplates any Zoom related workplace privacy concerns for 95% of employers.
Regarding occupational health and safety law, Ontario employers have a duty to “take every precaution reasonable in the circumstances for the protection of a worker (source)”. This is a liberally construed catch-all rule designed to protect workers from new dangers not already contemplated in the legislation. I would therefore propose that if a health and safety inspector were to be presented with evidence of workplace stress caused by forced camera usage, they could fine the employer and order them to change their camera policies.
Regarding human rights law, I wanted to provide a novel hypothesis that in rare instances, forcing an employee to turn their camera on could be discrimination.
The Human Rights Code in Ontario enforces equal treatment in employment without discrimination for every employee regarding many different grounds, including race, colour, sex, sexual orientation, gender identity, age, marital status, family status and disability.
There will be niche cases where turning a camera off is a part of a broader individual human rights accommodation plan for an employee based on one or several of the above-noted human rights grounds. For example, if an employee is experiencing workplace stress, burnout and depression, and they have to supervise young children who experience behavioural issues during working hours, the human rights grounds of ‘disability’ and ‘family status’ can be triggered, and it could be discrimination to force the employee to always turn her camera on against her wishes. For one, it could be reasonable that the employee’s doctor advised the employee to turn her camera off for mental health reasons (i.e., Zoom fatigue). Second, it could be reasonable that the employee cannot juggle parenting, working and appearing suitably on camera all at the same time.
Even more so, cameras are a window into our personal lives. Some people have difficult personal lives and granting unprecedented access to some people’s homes reinforces classism, racism and sexism.
Accordingly, policies forcing an employee to always turn their camera on are potentially unhealthy, discriminatory and non-inclusive.
Employers should therefore consider flexible Zoom camera policies.
Instead of always forcing cameras, employers should limit the use of forced cameras for only the most important meetings as well as adopt flexible policies that provide reasonable exemptions from camera use in all cases, among other employee-frinedly terms.
Inclusive Zoom Camera Policies
1. First, there should be no requirement to turn a camera on for mundane Zoom sessions. For example, quick calls to ask a single question should not require a camera. Only high-level staff meetings and, for example, client meetings should have forced camera usage, if at all.
Employers should provide ample warning that cameras will be required at designated meetings so employees can take time to prepare their home and arrange things for any children. However, the policy should make clear that if someone has a concern about their home that day or their ability to present themselves properly that day, or if they are feeling particularly “Zoom fatigued” that day, they should be free to turn their camera off in line with the terms of the policy. At no point should an employee be forced to turn a camera on without exception.
2. Second, employers should teach employees how to use a background on Zoom so that the worker’s personal life is not put on display. Still, this is not a perfect solution. Zoom fatigue comes, in part, from (1) staring at yourself all day, (2) needing to make sure you are presentable for a camera (which can be unflattering without expensive lenses and lighting), and (3) from needing to appear like you are always paying 100% attention. Only by removing the camera from the equation do employers alleviate at least part of Zoom fatigue. Removing the background on Zoom helps, but it is not a panacea.
In video calls there is a box where you are always in view; “This is unnatural,” says the researcher, “because nobody walks through life with someone who follows you with a mirror where you see yourself permanently. There are several studies that claim that when you see a reflection of yourself, you become more critical of yourself. ” That is why it is exhausting to be watching each other on screen all the time, every day.Entrepreneur Magazine
On a video call the only way to show we’re paying attention is to look at the camera. But, in real life, how often do you stand within three feet of a colleague and stare at their face? Probably never. This is because having to engage in a “constant gaze” makes us uncomfortable — and tired.Harvard Business Review
3. Thirdly, employers should pay for modern cameras, microphones and lighting for all employees who use Zoom for much of the day. There’s no worse feeling than staring at yourself all day on Zoom when you are using a cheap fisheye lens (the kind of lens built into your phone or laptop) with low ceiling lighting that highlights the bags under your eyes. A modern webcam, ring light and mic package cost $300 or less, and clients will be more impressed.
There are endless reasons why employees do not want to be on camera at all times. Some of these reasons concern serious issues like depression or problems at home. But some concerns, such as bad self-image on camera, can be helped somewhat if the employer pays to set the employee up with the appropriate gear.
Jeff is an employment lawyer in Toronto. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.