This article is intended to alert BC-based employers to a potentially significant liability exposure that may arise if they find themselves with BC-based workers who are working remotely in other jurisdictions.
The COVID-19 pandemic has led to many employees working from home. In some cases, employers have learned that, rather than working from their BC-based residences, their employees have opted to work remotely from other locations outside of the province. For example, employees may be visiting with family, or living in other provinces or countries, and continuing to work remotely while outside of BC. This raises a question as to whether employees working outside of BC continue to have workers compensation coverage through WorkSafeBC while working outside the jurisdiction.
Section 147 of the BC Workers Compensation Act (“WCA”) sets out the requirements that must be satisfied in order for workers to continue to have workers compensation coverage while working outside of BC:
Injuries happening outside British Columbia
147 (1) This section applies if
- A worker is injured while working outside British Columbia, and
- The injury would entitle the worker or the worker’s dependants to compensation under this Part if the injury occurred in British Columbia.
(2) The Board must pay compensation under this Part only if all of the following apply:
- A place of business of the worker’s employer is located in British Columbia:
- The worker’s residence and usual place of employment are located in British Columbia;
- The employment is such that the worker is required to work both in and outside British Columbia;
- The worker’s employment outside British Columbia:
- Has immediately followed the worker’s employment in British Columbia by the same employer, and
- Has lasted less than 6 months.
WorkSafeBC has expressed the view that a worker who “works from home”, but does so from a temporary home in another jurisdiction rather than from a location in BC may, depending upon the particular facts of the situation, not be considered to satisfy the requirement in section 147(2)(b) of the BC WCA to have a residence “located in British Columbia”. Further, a worker whose job ordinarily does not require them to work both inside and outside of BC (e.g. an executive whose job does not entail work outside of BC, an administrative assistant, an IT person, etc.) may not be considered to satisfy the requirements of section 147(2)(c) of the BC WCA. In other words, if such a worker suffered an injury while working outside of BC that arose out of and in the course of their employment with their BC-based employer, they may not have WorkSafeBC coverage to compensate them for their injury, and their BC-based employer may lose the protections of such coverage.
Further compounding the problem, the worker may have an entitlement to claim workers’ compensation coverage under the law of the jurisdiction in which the injury occurred, and the BC-based employer may have an obligation to register as an employer in that other jurisdiction in order to be “insured” under that other jurisdiction’s workers’ compensation scheme.
If the employer is required to be registered as an employer in the other jurisdiction where their worker is working, but does not register, the employer may, depending upon the legal regime in the other jurisdiction, be subject to sanction for not having been registered and may be held liable to cover the cost of the compensation paid to the worker in the other jurisdiction. In fact, in some US jurisdictions, the worker has a right to sue their employer for compensation for their injuries, and in at least one state (California) an employer that is not registered with the local workers’ compensation authority while having workers employed in the jurisdiction is committing a criminal offence.
Given the potential risks, WorkSafeBC guidelines advise that employers who have workers working in another jurisdiction should at a minimum make the necessary inquiries with the workers’ compensation authority in the other jurisdiction to determine what, if any, legal obligations the employer may have.
Finally, it is important to be aware of section 148 of the BC WCA, which provides an election to workers who are injured outside of BC and have an entitlement to compensation both under the BC WCA (i.e. they have satisfied the requirements of s. 147) and under the applicable workers compensation laws of the other jurisdiction. In such cases, the worker or the worker’s dependents may choose to either claim compensation under the BC WCA or under the compensation laws of the other jurisdiction. Under the BC WCA, if the worker does not elect to claim benefits under the BC WCA within specified time limits, the worker is deemed to have elected to claim compensation in the other jurisdiction. If the worker elects to claim compensation, or is deemed to have claimed compensation, in the country or place where they suffered the injury rather than in BC, this could result in significant liability exposure to the BC-based employer.
In light of the above, it is essential that BC-based employers recognize the potential liability exposure that arises when employees are carrying on their work remotely, outside of the province, and take steps to mitigate that exposure.