With the onset of the COVID-19 pandemic in March came an abrupt shift towards remote work among Canadian businesses. The COVID-19 pandemic has therefore not only transformed the workplace, but it has also normalized work from home arrangements. We expect remote work to continue for the foreseeable future while the pandemic continues to be managed, as this arrangement reduces the overall health and safety risks for both individuals and workplaces.
Aside from the office setting, there may be no obvious distinguishable difference between working remotely from home in Canada or from abroad. However, a number of practical and legal implications arise with respect to an employee’s work location including, but not limited to, employment standards, taxes and immigration.
As such, we recommend that employees be not only transparent with their employers with respect to their work location, but that employers develop and clearly communicate expectations and policies with respect to work from home arrangements. This can help to avoid conflict and reduce the chance of claims such as constructive dismissal or wrongful dismissal.
Implications of Working Remotely From Abroad
Employees should be forthright with their employers by disclosing any changes to their work location. This is particularly important as there are a number of practical and legal considerations that arise when an employee works remotely from abroad.
By virtue of their presence in a particular country, employees working remotely from outside of Canada may be entitled to the same rights as local workers. Depending on the jurisdiction, these rights could be more or less generous than those provided by the Ontario’s Employment Standards Act, 2000 (“ESA”), for example.
In determining whether the ESA continues to apply to an employee working abroad, a court will look at the following four (4) factors:
- Whether the employer company resides in Ontario;
- Whether the employer company carries out business in Ontario;
- Whether the matter at issue (i.e., termination, constructive dismissal, etc.) took place in Ontario; and
- Whether the contract related to a dispute was made in Ontario.
Employees interested in working remotely from abroad are encouraged to be mindful of the tax implications. While an employee may remain on the Canadian payroll, their presence in another country could subject them to additional tax obligations. In addition, the employer may also be liable to report an employee’s income in the jurisdiction in which the employee resides, in addition to other tax obligations.
Employees working remotely from abroad should be aware of any permits or visas they are required to secure to legally carry out remote work outside of Canada. Further, temporary foreign workers who are contemplating carrying out work from their home country or another international location should also be mindful of the implications this may have on their current Canadian work permit, and whether they are permitted to work from outside their location within Canada. For example, temporary foreign workers are generally issued employer-specific work permits, which often narrowly restrict their location of work.
Remote Work Location Restrictions
Since the start of the pandemic, many countries have actively targeted remote workers and encouraged migration by advertising work from home arrangements. Some countries introduced specialized visa programs for remote workers to further encourage employees to work from abroad by facilitating a more seamless process.
With the opportunity to work from almost anywhere, employees should be mindful of any restrictions imposed by their employer with respect to their work location. For example, while an employee may be permitted to work remotely on a full-time basis, the employer may reserve the right to modify the work arrangement and require the employee to physically attend the workplace on short notice. In some cases, the employee may be unable to return in a timely manner if abroad.
This is particularly important where employers have the right to recall employees with limited notice. In this case, employees could find that they are subjected to quarantine requirements. Failure to return to the physical workplace in a timely manner may result in a breach of the employment contract and may justify termination of the employee’s employment. This could result in the employee having limited options to pursue their employer for wrongful dismissal.
Given this, employers are encouraged to not only set clear parameters regarding work locations for employees, along with any associated rationale. Employers may further consider requiring that an employee notify and/or formally request approval to any changes to their work location.
Takeaways for Employees and Employers About Working From Abroad
Employers looking to outline their specific expectations, particularly with respect to remote work locations, may consider improving their existing and future employment agreements. Any amendments made with existing employees will be considered enforceable only if the employer offers new “consideration” to the employee, such as a signing bonus or an additional pay increase.
Employees are encouraged to abide by company policy and to be honest and transparent with their employers with respect to their work location, especially if they are considering work remotely from outside of Canada. If, however, employees feel that their rights (including those listed within the contract) have been violated, it would be wise to consider having this reviewed with employment counsel before deciding how to respond.
If you have any questions with respect to work location, whether you are an employer or employee, and the impact one’s location might have with respect to employment rights, termination of employment, wrongful dismissal, or otherwise, please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or here.
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