The COVID-19 pandemic has changed the way we work. Business-related travel, particularly international travel, has decreased significantly. For some employers, travel for work-related purposes, both domestic and international, is a necessity, not an option. In this blog post, we address some of the risks associated with business-related travel during the pandemic, and what employers ought to consider prior to making those travel arrangements.
Canadian Travel Advisories
Provincial health officers across Canada have issued advisories recommending that Canadians avoid all non-essential travel. Similarly, the federal government has issued a global travel advisory for Canadians to avoid non-essential travel outside of Canada until further notice.
Given current travel advisories, employers should review each proposed trip on a case-by-case basis to determine whether the travel is truly “essential.” Work that can be achieved in some other way (e.g. through a virtual meeting, travel at a later date, having someone at the intended destination do the work) likely does not meet the “essential” standard. Employers should be prepared to defend why the trip was “essential” in each case. If the business related travel is considered “essential,” employers should also ensure that the employee’s participation is voluntary. Taking these steps before allowing business travel will help reduce an employer’s liability.
Responding to Employee Refusals to Travel
Employers should be careful when responding to an employee’s refusal to travel during the pandemic. Failure to do so could expose employers to several types of claims from employees, including human rights and unsafe work refusal complaints.
An employee may have a legitimate reason for refusing to travel during a pandemic. Human rights legislation prohibits employers from discriminating against employees on the basis of various grounds, including disability. Where an employee refuses to travel, an employer should make inquiries about the basis for the refusal to determine whether the refusal is connected to a protected ground of discrimination (i.e. disability), and whether the employer’s duty to accommodate is engaged. The duty to accommodate may require an employer to grant an employee’s request not to travel, and to find another employee to go in their place, for example.
An employee may also refuse to travel on the basis that they believe it to be unsafe or present an undue hazard. Employers have a duty to advise employees of the right to refuse unsafe work, and the process through which to assert this right. Once triggered, employers also have a duty to respond to unsafe work refusals using the process outlined in applicable provincial or territorial health and safety legislation. In most cases, an employer cannot require another employee to undertake the work (i.e. travel) unless they have first made that employee aware that it is the subject of an unsafe work refusal. Depending on the jurisdiction, employers may have to get the employee that is agreeing to undertake the work to confirm in writing that they are aware of the ongoing, unsafe work refusal; have reviewed the employer’s response to the unsafe work refusal; are of the view that the work is safe, and consent to doing the work.
Occupational Health and Safety Considerations
Employers have a duty to ensure the workplace is safe. Employers also have a duty to provide employees with adequate information, instruction, training and supervision to ensure they can complete their work safely. Failure to adequately meet these general employer duties can result in orders, fines, penalties or charges against the employer. In the context of business travel during the pandemic, these general duties likely require employers to inform themselves, and in turn participating employee(s), of the following:
- the state of the pandemic in the destination country and region;
- the protective measures implemented by local authorities with the goal of determining whether it is safe to travel there;
- the protective measures implemented by businesses that the employee will be expected to visit during their travels (such as airlines, hotels, restaurants, clients, etc.);
- the regulatory requirements for visitors to the country and the potential consequences of breaching those requirements;
- addition control measures the employee can take to reduce the risk of contracting or spreading COVID-19 while travelling for work; and
- any additional information relevant to the travel destination such as reduced access to, or below standard, medical care.
Workers that contract COVID-19 while on business related travel may be eligible for worker compensation benefits. Generally speaking, provincial and territorial workers compensation schemes extend to injuries and illnesses suffered while an employee is working out-of-province or out-of-country, provided certain criteria are met. While the COVID-19 pandemic introduces some uncertainty, it is reasonable to expect that coverage would extend to illnesses caught abroad while engaging in work activities for an employer.
Quarantine and Testing Requirements When Returning from Travel
If the employee has to travel internationally for a business trip, they will have to quarantine when they return home for 14 days. If returning to Canada by air, the employee must also provide proof of a negative COVID-19 molecular test result to the airline prior to boarding. The test must be conducted within 72 hours of scheduled boarding. Employers should ensure that the employee will be able to obtain the appropriate test in the applicable country in a timely manner.
Work-related travel during the COVID-19 pandemic should be undertaken with careful planning and consideration of all of the risks, which may change as the pandemic evolves and vaccination becomes more widespread. While we have addressed some risks and considerations in this blog post, we have not addressed all potential legal issues. If you have specific questions about work-related travel for your business, please contact Cory Sully, Michelle Jones, or another member of Lawson Lundell’s Labour, Employment & Human Rights Group.
Cory Sully is an associate in our Labour, Employment and Human Rights Group and Privacy and Data Management Group in Vancouver. She advises and represents clients in all areas of workplace law. Cory provides practical and strategic ...
Michelle’s practice is focused on Indigenous law and environmental law. She also advises clients (primarily employers) on occupational health and safety matters. Michelle’s practice primarily involves administrative and ...
Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits.
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