Since the beginning of the COVID-19 pandemic, many employees have been working from remote locations in an effort to socially distance and stay safe. For some, this means working from home, and for others, this might mean working from the family cottage or other destinations across the country. In this article of our Post-Covid Workplace blog series, we discuss various considerations that are important to note when managing interprovincial remote workforces.
In subsequent weeks, we will be addressing:
(i) vaccination policies and whether a mandatory vaccination policy is permitted or recommended;
(ii) policies and best practices to ensure a safe return to work and/or manage a hybrid workplace.
MANAGING INTERPROVINCIAL REMOTE WORKFORCES
The location of an employee’s remote workplace, especially if that workplace is in another province, raises legal issues for employers seeking to manage a remote or hybrid workforce. In particular:
• Employment Standards. If an employee moves (or has moved) to a different province and continues performing work from that province, the employment standards laws of the new province (which cover, among other things, minimum wages, overtime thresholds, and termination entitlements) could now govern the employment relationship. For example, Ontario’s Employment Standards Act, 2000 applies to employees whose work is performed in Ontario or whose work is a “continuation” of work performed in Ontario. As such, if an Ontario-based employee requests to work from another province (or is already working from another province), the employment standards legislation of both provinces should be examined, and legal counsel sought to determine whether the work is a “continuation” of work performed in Ontario.
• Tax Implications. As each province determines its own tax rates, an employer’s withholding obligations may vary depending on the province where its employees work. Further, an employee working remotely in another province may cause the company to become a “permanent establishment” in that province, which can have further tax implications.
• Health and Safety Laws. Employers are required to maintain a healthy and safe workplace for all employees, including remote employees. Some provinces, such as British Columbia, place additional requirements on employers managing remote workforces, including check-in procedures if the employee is working alone or in isolation.
Given these risks and legal considerations, some employers may hesitate at managing a remote, interprovincial workforce and attempt to recall employees back to their “home” province. In addition to the constructive dismissal considerations discussed in our previous article, these employers should also consider: (i) whether the employee will have the ability to return within the requested timeframe; (ii) any quarantine requirements which must be observed; and (iii) the party responsible for relocation expenses or payments (especially if the employee is required to quarantine).
If you are an employer or employee with questions about returning to the post-COVID workplace, please contact a Turnpenney Milne lawyer.
Written by Jeff Rochwerg and Shanice Prendergast