Covid-19: Work from….where?

In a recent Quebec decision, an arbitrator was asked to decide whether an employer was justified in following a strict and automatic application of a policy prohibiting an employee from performing their work duties from abroad.

The Facts:

In this case, the employee, an associate professor at a Quebec university, requested the 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 Honolulu with his family. The professor and his family wished to stay in Honolulu due to the low per capita COVID-19 infection rate .The employer refused the employee’s request and he therefore returned, without his family, to Quebec, where he performed all of his tasks from his residence without ever having to report to his place of work.

The employee then submitted a second request for permission to perform his work duties from Honolulu so that 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… including considerations like the increasing costs of the employer’s group insurance coverage for working abroad and health insurance eligibility.

The Decision:

The arbitrator was of the opinion that the working conditions and the administrative paperwork of several employees working from abroad could be a burden to an employer. Accordingly, the employer had 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 desire to spend time abroad.

However, the employer had to accept the employee’s request to work from Hawaii in the context where:

• • teleworking was mandatory for the employer due to the regulations of public authorities (and, as such, was not a privilege);
  • the employee was not required to be physically present in Canada to perform his work duties during the period for which the employee had requested to work from Honolulu; and
  • the health of one of the employee’s children was the basis for the request.

Takeaways:

The employer may generally, under its right to manage the workplace, decide the location where telework is to be performed. However, this does not prevent it from assessing special circumstances making reasonable exceptions. As such, the automatic application of a teleworking policy, without considering exceptional circumstances that could justify an exemption or the easing of certain restrictions, should be avoided. As long as teleworking continues to be mandatory due to COVID-19 (and that, as such, it is not merely a privilege granted to an employee by a business) and that the request of an employee who wishes to work remotely from another country is founded on serious and exceptional circumstances, such as the health of a member of the employee’s family, legal advice should be sought before automatically refusing such a request. An employer could be justified in refusing telework from another country if it is able to show that the employee’s ability to perform the work would be affected, the employee’s physical presence is required during the relevant period, or other material issues are raised for the employer.