Labour and Employment Law Blog

“Job Location - Remote” – a phrase not uncommon in job posting in the new post-pandemic world. With more and more workers looking to maintain their work from home status, remote work opportunities have multiplied and for some employers remote workers have become the norm, not the exception. In fact, in the hopes of attracting the best candidate for the job, many employers are opening up remote positions to workers living not just in the jurisdiction in which the business operates – but in other provinces and/or territories across Canada. After all, hiring a remote worker is simple, right?

From a workers’ compensation perspective, maybe not.

This blog focuses on and provides a general overview of the workers’ compensation issues that employers should consider before taking the plunge and hiring remote workers that reside in, and will work, from a province or territory that is not where the employer itself operates.

Does your existing Workers’ Compensation Board (“WCB”) insurance cover the out of province remote workers?

It depends, but in most cases it’s unlikely.

Each jurisdiction in Canada has its own workers compensation legislation and WCB insurance program. These regulatory regimes generally cover workers working within the province or territory in question, with some temporary, limited coverage for workers whose work requires them to work outside their resident jurisdiction for a limited period of time. WCB coverage for out of jurisdiction work typically includes a defined time period for out of jurisdiction coverage beyond which the coverage expires. As such, it is unlikely that a business’s existing WCB coverage would extend to remote workers who work and reside in another province or territory (more commonly referred to as their “home jurisdiction”).

Are you required to register for WCB insurance in the remote worker’s home jurisdiction?

Maybe. Registration requirements vary from jurisdiction to jurisdiction.

Whether you are required to register will depend on the legislation in the remote worker’s home jurisdiction. Some jurisdictions may focus on what your company is in business to do in general (even if that takes place elsewhere), while others may focus solely on your business’s operations within the remote worker’s home jurisdiction. This assessment will also likely affect the premiums you will be required to pay.

(a) Mandatory Registration

If you are mandatorily required to register for WCB insurance in the remote worker’s home jurisdiction, you will need to ensure you do so within the requisite time-frame. A failure to register for WCB insurance when you are mandatorily required to do so (or a delay in registering), could result in fines or penalties being imposed.

(b) Optional Registration

If you are not mandatorily required to register in the remote worker’s home jurisdiction, you may still have the option of voluntarily registering for WCB insurance. In most (if not all cases) you are likely going to want to register for WCB insurance to ensure that both your business and your remote workers are protected if they are injured at work. If you do not have WCB insurance, you could face significant financial liability in the event a remote worker is injured while at work. In most jurisdictions, even injuries sustained while working from home are compensable provided they arise “out of and in the course of employment.”

Compliance with occupational health and safety legislation

Aside from WCB registration requirements, once you employ workers (remote or otherwise) in a jurisdiction, you will likely be subject to that jurisdiction’s occupational health and safety prevention requirements. These requirements vary from jurisdiction to jurisdiction and may depend (in part) on the industry in which you operate. Such requirements may include, but are not limited to, the implementation of bullying and harassment prevention policies, violence prevention policies, communicable disease plans and health and safety representatives/committees.

In some cases, certain occupational health and safety requirements may vary depending on the number of workers you employ. Therefore, you will need to carefully review the occupational health and safety requirements in the remote workers’ jurisdiction to ensure that you are complaint. You may also need to review and update your policies and procedures if you hire additional workers, as this may trigger additional obligations.

Will remote workers be required to travel out of their home jurisdiction?

While remote workers may primarily perform their work remotely from their residences in their home jurisdiction, they may on occasion (or perhaps more frequently) be required to travel to and/or work in other jurisdictions. Anytime a worker, including a remote worker, performs work outside of their home jurisdiction, there are additional WCB insurance considerations:

(a) Does your WCB insurance coverage in the remote workers’ home jurisdiction cover them for work done outside of their home jurisdiction?

This will depend on the specific legislation in the remote workers’ home jurisdiction. While a number of provinces and/or territories do extend WCB insurance coverage to workers working outside of their home jurisdiction, there are usually certain criteria that must be met. Even if the requisite criteria are met, the out-of-province coverage is usually time limited, after which, the remote worker will not be covered.

(b) Do you need to register for WCB insurance in the jurisdiction the remote worker is temporarily working in?

This will depend on the specific legislation in the jurisdiction in which the remote worker is temporarily working. Some jurisdictions allow out-of-province workers to work temporarily in their jurisdiction for a certain period of time, before the WCB insurance registration requirements are triggered.

Example

Green Grass Ltd., a British Columbia landscaping company (the “Company”) has decided to hire Ms. Smith as a Sourcing Specialist. Ms. Smith will be working for the Company remotely from her home in Calgary, Alberta, and is the Company’s first employee in Alberta. As part of her role, Ms. Smith will be required to travel to Ontario from time to time.

The Company has WCB insurance in British Columbia, but wants to know what, if any, other WCB obligations it might have in relation to Ms. Smith’s employment. An overview of the Company’s potential WCB obligations is set out below:

• As Ms. Smith will reside and work in Alberta, she will not be covered under the Company’s WCB insurance in British Columbia.
• As the Company’s primary business is landscaping, it is likely that the Alberta WCB would classify the Company’s business in Alberta in the landscaping industry, which would mean that the Company would likely be mandatorily required to register for WCB insurance in Alberta. As such, the Company must contact the Alberta WCB to register and open an account within 15 days of employing Ms. Smith.
• As the Company now has a worker in Alberta, the Company will be required to comply with Alberta’s occupational health and safety legislation, including but not limited to, hazard assessments of the workplace, and the development and implementation of violence and harassment prevention plans, policies and procedures.
• Assuming the Company registers for WCB insurance in Alberta, then Ms. Smith will likely be covered under the Company’s Alberta WCB insurance when working in Ontario, provided that: (a) the work done in Ontario is the same as that done in Alberta, and (b) Ms. Smith works in Ontario for less than 12 consecutive months.
• The Company may also be required to register for WCB insurance in Ontario if Ms. Smith spends 11 or more days in a year working in Ontario. In which case, the Company also be required to comply with Ontario’s occupational health and safety legislation.

Take Away

Hiring remote workers in other Canadian jurisdictions can be extremely enticing to employers, as it allows employers to expand their business without necessarily having to put down physical roots (e.g. offices), while at the same time allowing employers to hire the most qualified people without regard to geographical boundaries.

However, before deciding to take the plunge and hire remote workers, especially in jurisdictions in which your business does not currently operate, you need to carefully consider, among other things, the WCB insurance implications.

If you have any questions about hiring remote workers, please contact a member of our Labour, Employment & Human Rights Group.