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Remote work and implications for immigration and residency

Friday, July 23, 2021 @ 1:48 PM | By Kelly Goldthorpe

Kelly Goldthorpe %>
Kelly Goldthorpe
The COVID-19 pandemic has quickly shifted the work arrangements for thousands of employees from the workplace to the home. Statistics Canada reported that in early 2021, 32 per cent of Canadian employees worked mainly from home, compared to just four per cent in 2016. There were 3.1 million Canadian workers working remotely from home in response to the COVID-19 pandemic.

Telework, remote work, working from home are all part of a shift in work arrangements that is likely to continue after the COVID-19 pandemic subsides. Many companies are now allowing their employees to work from home, even after their offices reopen. For example, Google announced that at least 20 per cent of its workforce will work from home, although 60 per cent will be on site at least some days during the work week. Facebook is promoting its flexible work options, including expanding remote work to any role that can be done remotely. Even countries are getting into promoting remote work. The Bahamas Extended Access Travel Stay (BEATS) program allows visitors to live in the Bahamas for up to one year where they can work remotely from any one of the major islands.

Remote work allows workers to perform their jobs outside of the traditional workplace, such as an office environment. It is based on the concept that duties do not have to be performed at a specific place. As technology advances, remote work is increasingly possible in many industries. Remote workers can do their jobs from any location as long as they have the tools to do so, such as a computer and Internet connection. Remote work provides flexibility to employees to perform their duties in any location such as a home, office sharing arrangement or even a local coffee shop. It may provide cost savings to businesses as it frees up real estate and overhead costs.

While some employers are shifting their workplaces and employment arrangements towards remote work, all employers should consider the impact that this may have on their temporary foreign workers. The immigration regulations and policies have not necessarily adapted to this new reality of flexible work arrangements.

Foreign workers require work authorization before being eligible to work in Canada. However, where work is done in Canada by a foreign national whose employer is outside Canada and who is remunerated from outside Canada, the activity is not considered work and no work permit would be issued.

Immigration, Refugees and Citizenship Canada (IRCC) specifically allows foreign workers with employer-specific work permits to telework during a quarantine period in order to comply with the Quarantine Act and follow public health guidelines. This policy exists due to COVID-19 and the 14-day quarantine requirement following entry to Canada. It does not create a separate category for remote workers in Canada.

For those working in Canada with employer-specific work permits, there is an employer compliance regime that ensures that employers abide by conditions stipulated in the foreign worker’s employment offer. Employer compliance ensures that the business is actively engaged, in compliance with federal and provincial/territorial laws that regulate employment and recruitment, provide foreign workers with wages and working conditions that are set out in the offer of employment and make efforts to ensure an abuse-free workplace.

When applying for a work permit, employers must specify a location of work, which may or may not be the same as the business address. Immigration and Refugee Protection Regulations (IRPR) gives officers the authority to conduct on-site inspections of a workplace or location. The inspection may be unannounced. Therefore, a home office could be subject to an unannounced visit by an inspector to ensure that the business is actively engaged and compliant with federal, provincial or territorial regulations. During an on-site visit, inspectors can take photographs, video or audio recordings, examine anything on the premises related to the job, and they can request access to computers and other electronic devices.

Another difficulty of remote work by foreign workers is the work permit document lists a specific location, city or region where the primary job duties will be carried out. However, if the employer is based in one city while the employee is located in a different city or province, there may be difficulties in obtaining provincial health-care coverage because the work permit specifies a location that is different than the worker’s residence.

What laws govern the remote worker’s employment? Generally, it is the law of the province where the worker is physically located and where the work is performed, but if the business operation is in a different province, there may be a conflict. Employment standards, workplace health and safety laws of the location where the worker is physically present usually governs the employment relationship.

As well, prevailing wage rates vary between different cities. If a work permit was approved based on a location with a specific prevailing wage and ultimately, the foreign worker ends up residing and working remotely in a different location with a higher prevailing wage, there may be issues with compliance or eligibility in receiving the work permit.

It must be remembered that a work permit authorizing employment in Canada contemplates that there is entry into the Canadian labour market. Where work is done remotely, there can be a question of why that remote work specifically has to be performed in Canada. If the remote worker’s projects are connected to foreign clients, reporting to direct supervisor or manager who resides in another country and the worker is operating under the care and control of a foreign company outside of Canada, the question becomes, what is the connection to Canada? Is a work permit even required in this scenario given that there doesn’t appear to be labour market entry? However, if there is no labour market entry then the entry would be for tourism or temporary residence. There must be some connection to the Canadian labour market for a work permit to be issued.

Unlike the Bahamas, Canada does not have a program that allows workers to live and work here remotely.

Kelly Goldthorpe is an immigration lawyer at Green and Spiegel LLP.

Photo credit / Dorvan Davoudi ISTOCKPHOTO.COM

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