Remote Work in Canada - Employment Law Implications

**Written by Adele Zhang, Summer Student at Lee Workplace Law

Over the last year work from home has become the new norm. Initially, work from home arrangements allowed employers to maintain some level of continuity during the COVID-19 pandemic. Now, as life slowly returns to normal, employers and employees alike are considering how remote work may factor into their future.

As we discussed in our previous blog post Remote Work Abroad - Ontario Employment Law Implications the shift to remote work raises interesting questions about how the physical location of an employee may affect the employment laws that govern their employment relationship.

This blog highlights the relevant provisions of each provinces' employment standards legislation that determine the act’s jurisdiction. Understanding the applicable laws is critical first step for understanding the employment impact of working remotely abroad.

Ontario Employment Standards Act, 2000

Section 3(1) of the Employment Standards Act provides that the legislation will apply if:

• The employee's work is to be performed in Ontario; or
• The employee's work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario.

In Ontario, work performed outside of the province may be considered as being subject to the Ontario employment standards legislation.

Alberta Employment Standards Code, 2000

Section 2(1) and 2(2) of the Employment Standards Code provides that the legislation will apply to:

• All employers and employees, including the Crown in right of Alberta and its employees, except as otherwise provided; and
• All employees and employers if another Act does not apply to them

Work performed outside Alberta may be considered as being subject to Alberta employment standards legislation only if another province’s Act does not govern their employment relationship.

British Columbia Employment Standards Act, 1996

Section 3(1) of British Columbia’s Employment Standards Act provides that the legislation will apply to:

• All employees other than those explicitly excluded by regulation

The B.C. employment legislation is silent on whether work performed outside of BC would fall under their legislation.

Saskatchewan Employment Act, 2013

Section 2-3(1) of the Saskatchewan Employment Act provides that the legislation will apply to:

• All employees and employers in Saskatchewan unless explicitly exempt

Although the Saskatchewan employment standards legislation specifies the geographic boundaries of its jurisdiction, it does not stipulate how this provision may apply to employees working outside the province.

Manitoba Employment Standards Code, 1998

Section 2 (1) of the Employment Standards Code provides that the legislation applies to:

• All employers and employees

Manitoba’s employment standards legislation is silent on whether work performed outside Manitoba would fall under their legislation.

New Brunswick Employment Standards Act, 1982

Section 2 of New Brunswick’s Employment Standards Act provides that:

• All employers and employees are subject to this Act unless explicitly exempt, including work or services that may be performed in whole or in part outside New Brunswick

New Brunswick’s employment standards legislation clearly states that it governs employment relationships both within and outside of the province.

Prince Edward Island Employment Standards Act, 1988

Section 2(1) of the Employment Standard’s Act provides that the legislation applies to:

• All employers and employees unless otherwise expressly stated

The P.E.I. employment standards legislation is silent on whether work performed outside of P.E.I would fall under their legislation.

Newfoundland and Labrador Labour Standards Act, 1990

The Labour Standards Act does not appear to include any provision which explicitly states to whom it applies.

Takeaways

Only New Brunswick and Alberta’s employment standards legislation provide an explanation on how the legislation may apply to employees working remotely outside of the province. In Ontario and Saskatchewan, the legislation identifies the geographic boundary for its application, but fails to further explain whether it applies to employees remotely working abroad. In British Columbia, Manitoba, Prince Edward Island, and Newfoundland, the legislation does not identify a geographic boundary for its application.

As a result, in most provinces the employment standards legislation alone does not provide a clear-cut answer to whether an employee must be physically present (or to what degree they must remain) in the province for the legislation to apply.

Employers are encouraged to think carefully before permitting employees to work remotely from outside their respective provinces or territories. On the flip side, employees should further investigate how working out of province may impact their employment entitlements.

In every case, employers and employees alike should seek legal advice before making major employment decisions. Lee Workplace Law would be happy to help.