The COVID-19 pandemic has caused many provinces to declare a public health emergency requiring or recommending employees to work from home if their tasks could be performed remotely. Many employees have questions about this and wonder if they can work remotely from home in another province or country. Read on to find out about teleworking and if the Employment Standards Act (“ESA”) is still applicable if you’re not physically in Ontario, or in another country.
When can an employee reasonably request to telework, even outside Canada?
In the recent arbitration decision from Quebec, the arbitrator in Syndicat des professeurs de l’Université Laval (SPUL) and Université Laval, no G2020-21i, January 28, 2021, confirms that it might be reasonable to allow employees to work from home outside of Canada. The employee is an Associate Professor at a Quebec university who has requested permission to stay in Hawaii to perform his tasks remotely. He had moved to Honolulu with his family for a one-year sabbatical prior to the request. He would like to stay in Honolulu with his family as the public health emergency was declared in Quebec. One of his children suffered from a prior health condition that could benefit from the lower per capita COVID-19 infection rate of Honolulu. His request was refused, and he returned by himself where he performed all of his tasks without ever having to physically go into his place of work.
Subsequently, the Associate Professor placed a second request to perform his work duties from Honolulu so he could join his family. It was again refused on the basis that the employer does not want to create a precedent that could result in a significant influx of potential administrative burden from all other employees’ requests. However, his union disagreed and argued that the university must take into account the special circumstances of the employee’s request. Otherwise, the university’s systemic and strict application of its teleworking policy would constitute an unreasonable exercise of an employer’s management rights.
In the case of the professor, the arbitrator agreed that the working conditions and the administrative burden of employees working from abroad could be a burden to the employer and prima facie, on the face of it, sufficient to justify a general prohibition against working abroad. However, the employer should have taken account of the specific circumstances of the employee’s request where:
– It has become mandatory for the employer to accommodate teleworking due to the regulations of public authorities (not a privilege);
– The employee was not required to be physically present in Canada to perform his work duties;
– The health of one of the employee’s children was the basis for the request.
The employee was also able to demonstrate that the difference in time zone would not affect the quality of his work as he would adjust to Quebec time. He acquired private insurance and obtained RAMQ’s confirmation of coverage in Honolulu. Furthermore, his accountant confirmed that there would be no tax implications. The arbitrator concluded that the employer’s reason for refusing the request was unfounded.
Employer’s Right To Manage The Workplace
In general, employers have the right to determine the location of the workplace. However, this right does not allow the employer to exclude the possibilities of special circumstances. As long as a request to work remotely is founded on serious and exceptional circumstances, an employer should consider them before applying a blanket refusal to the request. The employer could be justified in refusing remote work requests if it can demonstrate:
– an employee’s ability to perform their work would be affected;
– or that the employee’s physical presence is required during the relevant period;
– or the existence of material issues.
Am I still protected under the Ontario Employment Standards Act(“ESA”)?
Section 3 of the ESA states that it is applicable if:
1. The employee’s work is performed in Ontario; or
2. The employee’s work is to be performed outside of Ontario is a continuation of work performed in Ontario.
In Shu Zhang v. IBM Canada Limited, the employee had been working out of the employer’s Ontario office since July 2009. He entered into a working from home arrangement with his employer in 2010, and subsequently moved to British Columbia in 2015. Since his relocation to British Columbia, he reported to a manager in the United States, but worked with a team of colleagues in both the United States and Ontario. The software project that he worked on was headquartered in the Ottawa Offices and laboratory. In 2017 he was asked to return to Ontario but refused. The employee was deemed to have resigned and he sought severance pay under the ESA.
The Ontario Labour Relations Board decided against the employee and found the ESA is not applicable. The Board reviewed section 3 and noted while the employee did some work in Ontario, it could not be said that his work outside of Ontario was a continuation of his work in Ontario. The Board has also noted that the employee worked from his home in British Columbia for the last two years of his employment and during that time did not physically attend workplaces in Ontario. It indicates the Board has taken into account the specific facts and circumstances in reaching its decision.
The cases above demonstrated the need to review each scenario on a case-by-case assessment of the individual circumstance as each set of unique features could be critical in determining whether Ontario legislation still applies and/or whether it is unreasonable to refuse an employee’s request to work from home outside of Canada.
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