The Covid-19 pandemic has caused many firms and organizations to ‘go virtual’ for those whose jobs allow this. It has also created awkward situations for assignees and their sponsoring companies when borders are closed and “shelter in place” orders are given.
Our current environment, combined with advanced communication technologies, will have an impact on jobs. It may translate to some business trips being replaced by virtual meetings, and perhaps fewer assignments. Companies are beginning to make decisions as to who will be required to come into the office, and who can work at home. Will many international assignees become virtual assignees?
There are several ways this phenomenon can manifest itself in global mobility. A few examples:
1. Stuck while on holiday: An assignee from Brazil working in Germany was in South Africa on holiday recently and was trapped there when the country closed its borders. He suggested he ‘just work from there.’
2. Shelter in Place: A UK native lived in France and commuted to her job in Switzerland. She was told to shelter in place, and work from her home in France.
3. Expat in place: A US citizen living in Philadelphia had just received a job offer that would relocate him to Singapore when Covid-19 made this move impossible. Instead, he offered to work from 8pm-6am daily in Philadelphia, aligning with Singapore office hours, in order to smooth communication with his colleagues. His Singapore employer has no offices in the US.
4. Being with aging parents: A US employee with Brazilian roots asked to move from Boston to Sao Paulo (on his own) so he could be with his aging parents. He believed he could work virtually from there with ease.
5. Expired visa: An employee’s visa expired but the pandemic means they cannot return to their home country anytime soon. The host country said they can stay without penalty, due to the circumstances.
To learn what the globally mobile who are caught in brand new scenarios like these should do, I reached out to industry colleagues at Fragomen. Martine Cuomo and Ethan Kaufman are both immigration attorneys with decades of experience. Here is a summary of what they shared with me:
“They should speak with their in-house mobility team, or in-house or outside immigration counsel, to make sure they have correct guidance. The impact of a change in employment circumstances (location, duties salary, hours) may vary widely depending on the visa category.
Also, more is at stake than an employee’s status. Some countries have draconian immigration policies and even a single ‘exception’ has the potential to implicate a broader corporate interest, such as debarment from immigration or work permit renewals beyond the employee at issue or potential tax ramifications at the corporate level.
In some instances, disparate treatment of foreign nationals for immigration purposes – even compliance – raises the possibility of creating potential claims under local employment laws if domestic workers view the accommodations as prejudicial to their interests or simply unfair.”
The rules in some circumstances are clear and in others, given the fluid nature of the government pronouncements, are gray areas with room for interpretation. Therefore, policies need to be made nationally by country management and in alignment with global mobility and broader legal concerns, but not ad hoc case by case as seems expedient.
All five scenarios present seemingly simple transitions to virtual jobs. However, they raise country-specific work visa issues and can trigger tax liabilities. Being virtual does not exempt anyone. Circumstances vary. For example, for the person whose visa expired but was unable to travel home (#5 above), the host country could hold them blameless and allow them to stay. But could they work? It may depend on who in the government was granting them some room to maneuver.
Shelter in Place (#2 above) may be the easiest to do and have the least risk, but which side of which border and what is happening there requires close watching.
So does the virtual working trend cross over into the global mobility world? Clearly it will, to some degree, but will it result in a new way of working? It may, if proper visas, taxes and PE (Permanent Establishment) guidelines are followed. Companies could easily have people living in Philadelphia but “working” in Singapore from 8 p.m. to 6 a.m. The scenarios above all cross over immigration guidelines, even when there is no immigration at all.
Just because it is easier than ever, doesn’t mean it’s legal. To be sure, talk with your in-house or outside immigration counsel before letting an employee working across borders “go virtual”.