Remote work arrangements have become increasingly popular since the onset of the COVID-19 pandemic. Employees have embraced this workplace flexibility and have been permitted to work in various locations, including outside of Ontario.
Accordingly, we review the several practical and legal implications associated with working from home outside Ontario.
Employee rights – Jurisdictional matters
In determining the appropriate employment standards legislation that governs an employment relationship, several factors will be taken into consideration, including the location where the employee performs his/her role.
In Ontario, the application of the Employment Standards Act, 2000 (the “ESA”) is limited to situations where the employee’s work is:
- Performed in Ontario; or
- A continuation of the work performed in Ontario.
Therefore, when an employee has performed his/her role in more than one location for his/her employer, the issue of jurisdiction may become ambiguous. This is particularly true where it is not clearly discernable that the work the employee is performing is a continuation of the work the employee performed in Ontario.
Case law demonstrates that when an employee carries out a work-from-home arrangement with his/her employer, decision-makers will focus on whether the work performed is truly a continuation of the work previously performed in Ontario. Specifically, the ESA does not apply where the work is to be performed exclusively in Ontario even if there is a mere possibility that this may change, particularly if there is no back-and-forth movement between Ontario and another jurisdiction contemplated in the work-from-home arrangement.
Accordingly, when it is determined that the ESA does not apply, employees working outside of Ontario will be entitled to the same rights as local workers, which may afford some employees with greater or less generous rights. An unintended, yet significant consequence of this determination relates to an employer’s liability, particularly if the employer is relying on specific contractual provisions that restrict or otherwise carefully define an employee’s rights, including an employee’s rights upon the termination of his/her employment.
In addition to any work-from-home arrangements in place, a decision-maker will also consider the following factors in determining the appropriate law to govern the employment relationship:
- Source of benefits and wages;
- Direction and control of employee work;
- Location of employment and frequency/split of work between the jurisdictions; and/or
- Residence and place of business of parties.
Human rights protections extend to all employees, and may include those in remote working arrangements outside Ontario. Accordingly, an employer’s duty to provide reasonable accommodation may continue to apply to employees working remotely outside of Ontario.
Employers should ensure there are protocols in place to both receive and manage requests relating to accommodation and human rights as failure to accommodate an employee based on a protected ground may be characterized as a violation under the Ontario Human Rights Code (the “Code”).
Specifically, employers should be prepared to consider accommodation based on protected grounds as outlined in the Code, and may include providing more flexible working hours for employees facing issues related to managing childcare obligations or reviewing and providing equipment to satisfy specific requests relating to tools to satisfy work duties.
Health and Safety
Employers are required to take reasonable steps to provide employees with a safe and healthy workplace pursuant to the Ontario Occupational Health and Safety Act (the “OHSA“). “Workplace” is broadly defined to include any premises or place where a person performs work in the course of their employment, and therefore, it is expected that employers continue to maintain safe and healthy working environments for employees who have entered work-from-home agreements that are being carried out outside of Ontario.
Accordingly, to remain in compliance with their obligations, employers are encouraged to maintain regular contact with their employees in order to ensure that information and policies relating to health and safety matters are clearly articulated. In addition, employers may be wish to consider implementing some health and safety-related steps and procedures, including, but not limited to the following:
- Ensuring employees inform employers of any changes in their work environment and re-assessing the employee’s workplace as required;
- Assessing the ergonomics of employees’ workplace, including ensuring appropriate workstations, positioning, and work area ventilation;
- Restricting employees to usage of employer-authorized equipment;
- Developing protocols for emergency circumstances (including in relation to a fire or urgent health matters);
- Developing procedures to ensure the personal security of employees; and/or
- Developing protocols to maintain cleanliness and hygiene in the workplace.
Strategies to manage work-from-home arrangements outside of Ontario
As we continue to manage the COVID-19 pandemic, flexible work arrangements, including work-from-home arrangements outside of Ontario may continue to be the norm. Accordingly, we encourage employers to consider the following strategies to improve the successful implementation of work-from-home arrangements, particularly those outside Ontario:
- Establish remote work policies to govern remote work arrangements (particularly arrangements that occur outside of Ontario).
- Implement and strictly adhere to remote work policies, including in relation to review of requests, approvals, and conflict management, and updating these policies as necessary and on a periodic basis.
- Enter into remote work agreements that outline both employee and employer expectations, including:
- The temporary nature of the work to be performed outside of Ontario;
- Mandating a return to the office in Ontario, where appropriate; and
- Properly articulating the intentions of the parties in relation to the remote work arrangement.
- Conducting a remote workplace assessment to manage health and safety concerns and, where applicable, human rights matters.
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