With travel to the U.S. becoming anxious, if not risky, for many Canadians, employers are facing the prospect of employees refusing to travel south of the border.
But can employers require employees to do so, and do employees have a basis on which to refuse? “My advice to employers is not to assume that employees are entitled to refuse, but also not to assume that employees have no right to refuse,” says Abigail Herrington, a labour and employment lawyer with McInnes Cooper.
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Much of the concern arises from Trump-era policies that have increased scrutiny at the border, including potential entry restrictions on travellers who have the gender marker ‘X’ on their passports and an uptick in searches of private electronic devices by border personnel.
The Canadian government allows transgender or non-binary individuals who don’t want to indicate they’re male or female on their documents to place an ‘X’ in the appropriate place instead. About 3,600 Canadian citizens have taken advantage of that option.
This past September, in what appeared to be a response to anti-LGBTQ2S+ animus from the Trump administration, Canada changed its travel guidance to warn Canadians with ‘X’ gender identifiers that they “might face entry restrictions” in countries that didn’t recognize the mark.
Statistics Canada reported in November that car travel to the U.S. had decreased by almost 30 per cent and airline travel dropped by 24 per cent year over year, intensifying the need for employers to understand the related rules.
The governing principle is that employers can require employees to travel to the U.S. if the nature of their role implies such travel, if their employment contract expressly mandates it or their job descriptions expressly refer to it.
Even in these situations, however, the right to require travel isn’t absolute. “The two main reasons employees may legally refuse to travel to the U.S. are found in occupational health and safety legislation and human rights legislation,” Herrington says.
While the wording varies from province to province, OHS laws generally give employees the right to refuse any act where they have reasonable grounds to believe that complying would likely endanger their health or safety. The belief typically requires that the employee support it with facts at the time of the refusal.
“But the level of endangerment to health or safety must rise to a certain threshold,” Herrington says. “A mere negative impact, such as a degree of discomfort, is not enough.”
From an HR perspective, legislation throughout Canada prohibits employers from discriminating against employees based on certain protected personal characteristics, including sex, sexual orientation and gender.
“So requiring employees to travel to the U.S. regardless of valid concerns that they will suffer discrimination directed against this protected personal characteristic could trigger an employer’s duty to accommodate the employee to the point of undue hardship,” Herrington says. “Imposing adverse consequences in similar circumstances or failing to accommodate could also lead to a human rights complaint.”
If an employee refuses to travel to the U.S., Herrington recommends that employers take the refusal seriously without dismissing it at face value and assess the refusal by identifying the grounds, the risk the employee alleges and investigating the risk’s objectivity, keeping in mind that travel advisories aren’t necessarily determinative of an objective risk.
They should also discuss options and alternatives with the employee and communicate the decision to the employee.
It’s also important for employers to document the process, including the refusal, the reasons for the refusal and the process followed to investigate the matter and adjudicate the refusal.
Herrington also advises employers to be proactive in anticipating employee refusals to travel to the U.S. Among the measures she recommends are specifying terms of travel in employment agreements and job descriptions; developing, implementing and training managers and human resource professionals on procedures for handling employee travel refusals; and keeping policies up to date.
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