Canadian Lawyer

www.canadianlawyermag.com 55 employers often face wrongful dismissal claims if the response is heavy-handed. To avoid this, clear documentation is key. "Working remotely ... should be character- ized as a privilege, not a right," Whitten says. Herber agrees, encouraging employers to write policies that explicitly reserve the right to revise work arrangements. The risks of fully remote work The legal picture becomes more complicated when employers allow some or all employees to work fully remotely. "Location of work is a big issue," Mitchell says. Employment law is tied to where the work is performed. If a Toronto employer hires someone who lives in British Columbia, then BC's employment standards – including different vacation and overtime rules – apply. Whitten underscores the complexity when international moves are involved by citing an example of an employee moving to South Africa. "You might want to familiarize yourself with South African employment law," he says. "Because ... if you're on [that country's] soil, [its] legislation applies." This can trigger tax, payroll, and legal liabilities for the employer in that foreign jurisdiction. Employment lawyers strongly recommend using written agreements with location clauses. "It should specify that the employee will not leave the province ... without notifying you, and you have the right to say no," Mitchell says. Herber recalls one employer who discov- ered a worker had relocated only after hearing unfamiliar birdsong on a video call. "He was in the Dominican and had hired other people who lived there to do his work," she says – raising serious issues around confi- dentiality, unauthorized subcontracting, and international compliance. Cybersecurity and data protection are also major concerns in fully remote models. Mitchell stresses the need for secure networks, defined protocols for data access, and physical privacy at home. "Your data is going to somebody's home now," he says. Tax compliance adds another layer of risk. CRA guidance, updated in January 2024, affects how employers determine an employ- ee's "province of employment" – with implica- tions for payroll remittance and home office expense claims. Employers who fail to track employee location may face fines or audit risks. Occupational health and safety legislation has also evolved. Telework is now explicitly covered, requiring employers to ensure the home workspace meets safety standards. Remote employees using their own equip- ment may also raise questions about liability for wear and tear or replacement. Future-proofing the workplace Regardless of the model – hybrid, in-office, or fully remote – employment lawyers agree that the best protection is a defensible, documented policy. Whitten urges companies to "socialize" policies through discussions and Q&A sessions. "It's not just sending it as an email," he says. Remote work agreements should also include flexibility clauses. "Build in some notice ... [e.g.,] 'in the event we require a change,'" Mitchell says. Herber adds that employers should retain the right to adjust the arrangement as business needs evolve: "You want the employers to be able to retain the right to bring employees back into the office." Because once remote work becomes the norm, changing course without consequence may no longer be an option. "You want the employers to be able to retain the right to bring employees back into the office" Alix Herber, Fasken Martineau DuMoulin LLP LEGAL ISSUES WITH REMOTE WORK Jurisdictional concerns Return-to-work disputes Compliance with employment standards Occupational health and safety and workers' compensation issues Tax and payroll obligations Privacy and security Source: Fasken

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