Coronavirus (COVID-19), HR Management & Compliance

Dear Boss, Can I Work Remotely from Hawaii?

As a result of COVID-19, many Canadian provinces declared a public health emergency and either ordered (or urged) employers to let employees work from home if their tasks could be performed remotely. A business may face several crucially important issues with regard to performing work remotely. Can it establish an area or a distance within which employees are required to perform their duties remotely? Is it reasonable for an employer to prevent its staffers from performing their work outside of Canada when teleworking is presently mandatory in many of the country’s provinces? In a recent Quebec decision, an arbitrator had to decide on the strict and automatic application of a policy prohibiting an employee from performing his work duties from abroad.

telecommuting

Facts

An associate professor at a Quebec university asked his employer’s permission to stay in Honolulu, Hawaii, to perform his work duties remotely following a year’s sabbatical during which he had moved to the city with his family. Because of the COVID-19-related public health emergency in Canada and a previous medical issue affecting one of his children, the professor and his family wished to stay in Honolulu due to its low per capita coronavirus infection rate.

The employer refused the request. Therefore, the professor returned to Quebec without his family and performed all of his tasks from his residence without ever having to report to the workplace.

The professor then submitted a second request for permission to perform his work duties from Honolulu so he could join his family. The employer again refused, to avoid creating a precedent that could trigger numerous requests to work remotely outside of Canada, thereby creating what it considered an administrative burden. In particular, it refused to let him work from abroad for the following reasons:

  • Its group insurance wouldn’t cover him while working remotely from abroad;
  • He could encounter problems with provincial and federal health insurance coverage if he performed his work remotely;
  • An employee generally must pay income tax in the country where he is staying, which would create significant administrative challenges for the university’s payroll department and potential problems with federal and provincial tax authorities;
  • The university’s responsibility to provide all employees with safe and ergonomic working conditions would be impossible to ensure from abroad; and
  • Performing the work could prove to be difficult because of the five-hour time zone difference between Hawaii and Quebec.

The assistant professor’s union argued the university (in reasonably exercising its right to manage the workplace) had to take into account the special circumstances of his request. That way, it could avoid a systematic and strict application of its teleworking policy, which would amount to exercising its management right in an unreasonable manner.

Could Employer Refuse Teleworking Arrangement from Honolulu?

The arbitrator believed the working conditions and the administrative paperwork of several employees working from abroad could be a burden to an employer. Accordingly, the facts could provide prima facie (or initial) sufficient grounds to justify a general prohibition against working abroad. The employer could indeed create a dangerous precedent if it agreed to a request based only on the employee’s desire to spend time in another country.

Nevertheless, the employer had to accept the employee’s request to work from Hawaii when:

  • Teleworking was mandatory because of public health regulations (i.e., it wasn’t a privilege);
  • He wasn’t required to be physically present in Canada to perform his work duties during the period for which he had asked to work from Honolulu; and
  • The health of one of his children was the basis for the request.

The employee also had shown the time-zone difference wouldn’t affect his work quality because he would adjust to the local time in Quebec. Moreover, he had taken out private insurance and obtained confirmation the federal coverage would be valid even if he was working from Honolulu. His accountant also confirmed there would be no tax implications relating to his salary (and the applicable deductions) because his principal residence would still be in Canada. The university’s reasons for refusing the request were therefore unfounded.

Takeaways

Under their right to manage the workplace, Canadian employers may generally decide the location where telework is to be performed, but they still will need to assess special circumstances and make reasonable exceptions. Consequently, they should avoid automatically applying a teleworking policy without considering exceptional circumstances that could justify an exemption or the easing of certain restrictions.

As long as (1) teleworking continues to be mandatory because of COVID-19 (that is, it isn’t merely a privilege granted to an employee by a business) and (2) the request of an employee who wishes to work remotely from another country is founded on serious and exceptional circumstances, such as a family member’s health, you should seek legal advice before automatically refusing the request. You could be justified in refusing the inquiry if you can show the employee’s ability to perform the work would be affected, his physical presence is required during the relevant period, or other material issues would come into play.

Deborah Furtado is an attorney with Fasken in Montréal, Quebec. You can reach her at dfurtado@fasken.com.