Whether it is to visit family or to escape the cold, many residents of the Northwest Territories, Nunavut, and Yukon are accustomed to travelling south during the winter months. As the Covid-19 pandemic stretches into 2021, inter-jurisdictional travellers remain obligated to self-isolate for two weeks upon arrival in the territories for Yukon and the Northwest Territories, and before arrival in Nunavut at one of the designated isolation hubs. All three territorial governments have also issued advisories recommending that residents refrain from inter-jurisdictional travel. Federally, the Government has implemented new requirements for any Canadians who travel internationally, including the need to have a negative Covid-19 test before boarding their return flight, in addition to isolating when they return to Canada. These requirements have meant that territorial residents have had to reconsider, adjust, or cancel their travel plans.
There has been considerable news coverage in recent months on the extent to which employees can and should travel out of their home territory, and on whether or not employers can restrict the off-duty travel of their employees.
Generally, an employer cannot restrict what an employee chooses to do when they are not at work. That includes a situation where the employee decides to travel outside of their home territory while on vacation. This does not mean, however, that an employer does not have some say in determining their employees' travel plans.
Subject to the terms of the employment contract or an applicable collective agreement, an employer has the ability to determine the timing of an employee's vacation leave. In making that determination, an employer can inquire about whether an employee intends to travel out-of-territory. If an employer is concerned about the effects that an employee's absence may have on the operation of the business, they can elect to deny the vacation request until a time where the business may be better situated to handle the employee's absence. An employer may also place some prerequisites on an employee's vacation being granted, if there is a legitimate business reason to do so.
For example, back in November 2020, it was announced that teachers in the Northwest Territories who wished to travel south over the holidays were required to disclose those plans to the Northwest Territories Department of Education, which would then decide to grant or deny their leave. As a pre-requisite to the granting of leave, teachers were required to submit two weeks of lesson plans to cover the time that they would be self-isolating. The Department of Education also announced that any teacher who travelled would not be granted paid leave during their self-isolation.
Given that many employers are struggling to manage their operations during the pandemic, it should come as no surprise that employers may be reluctant to let their employees travel outside of their home territory if it means they have to take additional time away from work to self-isolate. An employer may deny time off for an employee's personal travel, as long as such a denial is based on the business cost of a resulting quarantine, or other legitimate business-driven interest. An employer should avoid any action that could result in a claim of discrimination under the applicable human rights legislation.
In order to determine whether or not an employer has a legitimate reason to deny an employee's request for vacation leave, one thing an employer must consider is whether or not an employee can work during the mandated self-isolation period. If an employee is able to work from home or from an isolation hub, an employer should, to the extent possible, agree to this arrangement.
Employers should consider how their current workplace policies apply to working from home (or from an isolation hub), including supervision, performance management, time recording, privacy, confidentiality, IT and document management, and insurance. Employers should be aware of their obligations under applicable legislation, including employment standards, health and safety, and human rights. Employers should also ensure that there is a clear policy or agreement with respect to what equipment or costs of working from home are being covered by the employer.
Should an employee leave their home territory, and be unable to work from home or from an isolation hub, their employer may dictate that the employee choose between taking additional vacation time (if it is available), or unpaid leave for the duration of their self-isolation period.
An employee cannot be disciplined or terminated because they have to take additional time off to self-isolate. Both Yukon and Nunavut have passed new legislation granting employees access to Covid-19 protected leave. In Yukon, the Leave (Covid-19) Regulation states that employees are entitled to a single leave of absence without pay of up to fourteen days if the employee requires the time off to quarantine during the pandemic. Similarly, Nunavut has amended its Labour Standards Act to include public emergency leave. Although most of the particulars on how and when an employee may take advantage of this leave are still forthcoming, section 39.14 states that every employee is entitled to an unpaid leave of absence from employment for the duration of the Public Health Order.
In the Northwest Territories, a similar bill to introduce emergency leave has been introduced in the Legislative Assembly. Bill 20 will amend the Employment Standards Act to provide employees with unpaid emergency leave, including in situations where the employee is required to self-isolate. As of January 13, 2021, Bill 20 is currently in front of Committee for debate and is expected to have its third reading after the Legislative Session resumes in February. If and when this legislation comes into force, employees in all three territories will be able to take at least one protected unpaid leave as a result of COVID-19, which would cover a fourteen-day period of self-isolation.
In summary, northern employers cannot restrict employee's inter-jurisdictional travel, unless there is a legitimate reason to do so. Employees do not have an obligation to tell their employer exactly where they are going, but they do have an obligation to advise their employer that they are leaving their home territory, as their ability to work will be impacted during the mandatory self-isolating period. The employer must then determine whether the employee can work remotely while self-isolating. If an employee is not able to work while self-isolating, they will be required to take fourteen days of leave.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
