Amid rising political tensions and recent border incidents, Canadian employers are increasingly facing difficult decisions about sending employees to the United States. Lai-King Hum, founder of Hum Law Firm, stressed the importance of clear policies and open communication as key factors in managing cross-border assignments.
“Employers can generally require employees to travel internationally as part of their duties if such travel can be inherently implied by the nature of their role or is explicitly stated in their employment agreement or job description,” Hum said. But it’s also important to clearly define travel expectations upfront to avoid potential legal issues down the road.
However, Hum cautioned that an employer’s right to mandate international travel isn’t absolute. “The travel requirement must be reasonable, clearly communicated, and consistent with the employee’s role and past practice,” she said.
The issue becomes particularly sensitive when employees raise concerns about their safety, health, or human rights. According to Hum, employees have legitimate grounds to refuse international travel under specific circumstances.
“Employees can legitimately refuse assignments if the travel exposes them to unreasonable safety risks or if it conflicts with protected grounds under the Ontario Human Rights Code,” she stated clearly.
Detention of Jasmine Mooney
One example Hum cited was the recent high-profile detention of Canadian Jasmine Mooney by U.S. Immigration and Customs Enforcement (ICE). Mooney’s detention put a spotlight on the real and unpredictable risks associated with cross-border travel.
“In light of the recent detention of Canadian citizen Jasmine Mooney, employers need to take their employees’ concerns about cross-border risks and safety seriously,” Hum said.
She also pointed out particular vulnerabilities for certain groups.
“Employers should avoid sending LGBTQIA+ individuals to the U.S., especially when they express safety concerns,” Hum said. “Employers must carefully consider these circumstances to avoid human rights violations or constructive dismissal claims.”
How employers can respond
When an employee refuses to cross the border, employers must carefully consider their response. Hum said disciplinary actions or termination could be considered, but they come with significant legal risks if the employee’s concerns are justified.
“Termination or disciplinary action may be justified if international travel is a fundamental requirement of the job, either inherently implied by the employee’s role or clearly stated at the time of hiring or agreed upon later,” she said. However, termination for cause typically requires employers to meet a higher standard, including providing formal warnings prior to termination.
Less confrontational approach
Employers can also opt for a less confrontational approach. “Some employers may choose to terminate an employee without cause by providing adequate notice without waiting for the full disciplinary process,” Hum said. This allows the employer to manage their workforce without necessarily labeling the employee as insubordinate.
But before considering any disciplinary measure, Hum said employers need to thoroughly investigate the employee’s refusal.
“Employers must explore why the employee is refusing, considering whether the refusal relates to legitimate safety concerns, disability accommodations, or other protected grounds,” Hum said, referencing both the Ontario Occupational Health and Safety Act and the Ontario Human Rights Code.
Practical solutions
Employers must also consider practical solutions, such as assigning travel responsibilities to employees who are comfortable travelling.
“Practically speaking, some employees love travelling, and others do not,” Hum said. “Therefore, employers can simply assign the travelling to workers who love it, which helps maintain team morale.”
In addition to personal safety concerns, Hum highlighted growing issues related to data privacy and security at the U.S. border. Any travellers face potential searches of their electronic devices by U.S. Customs and Border Protection (CBP) agents. Though device searches remain relatively rare, recent cases involving detained travellers due to content discovered on electronic devices indicate heightened scrutiny at the border.
“Employers should implement policies addressing how company data should be protected during business trips,” Hum said. “This includes guidelines on the use of devices, information storage, encryption, and dedicated travel devices.” Hum also stressed the importance of clear reporting guidelines if an employee’s device is inspected or compromised.
Advice from Ottawa
Hum’s advice aligns with recent guidance from the Canadian government, which recommends travellers take precautions, such as using dedicated travel devices or minimizing sensitive information stored on personal electronics when crossing the border.
Ultimately, Hum encourages employers to take a proactive and thoughtful approach.
“Given these developments, employers should proactively address the potential privacy and security implications for employees travelling to the U.S.,” she concluded. “Clear communication, detailed policies, and thorough consideration of individual employee concerns are essential to managing these risks effectively.”
Canadian employers navigating cross-border travel to the U.S. must balance legitimate business needs with increasingly complex risks and employee rights. As Hum succinctly put it, careful preparation and open dialogue are critical in maintaining compliance, safety, and employee morale in a politically unpredictable landscape.
Sidebar: Recent border incidents highlight risks for Canadian travellers
Canadian employers considering sending employees to the U.S. face increased scrutiny after several recent high-profile incidents involving international travellers detained or refused entry.
In March 2025, Jasmine Mooney, a Canadian business consultant and actress, was detained by U.S. Immigration and Customs Enforcement (ICE) while attempting to renew her TN work visa at the San Ysidro border crossing in California. Mooney, who had previously secured this type of visa successfully, was unexpectedly detained and held for days in conditions described by her family as “inhumane and deeply concerning,” according to a CBS News report.
ICE officials attributed her detention to a violation of immigration laws, citing executive orders under President Trump’s second term. Mooney described feeling “kidnapped” by the process and her treatment in detention. Her case raised alarms about the unpredictability Canadians might face at U.S. borders.
Concerns have also been fueled by the recent denial of entry to a French scientist travelling to a conference near Houston, Texas. The French government alleged the scientist was denied entry due to critical private text messages about Trump administration policies discovered on his phone. However, Tricia McLaughlin, a spokesperson for the U.S. Department of Homeland Security, dismissed this, stating the researcher was turned away because he possessed confidential data from Los Alamos National Laboratory, in violation of a non-disclosure agreement, according to the New York Times.
Regardless of the conflicting accounts, the case underscores heightened inspection of personal electronic devices at U.S. border points. According to a National Post article, the U.S. Customs and Border Protection (CBP) confirmed that officers may search travellers’ electronic devices without a warrant or even reasonable suspicion, under the border search exception doctrine. While such searches impacted fewer than 0.01 per cent of arriving international travellers in 2024, the consequences for those affected can be severe and unpredictable.
In response to these increased risks, legal experts recommend Canadian employers and travellers take proactive measures. Advice from the American Civil Liberties Union (ACLU) includes carrying contact details for immigration attorneys or emergency contacts when crossing the U.S. border. The U.S. law firm Harter Secrest and Emery advises keeping sensitive information on cloud services rather than directly on devices, to mitigate privacy risks during potential border searches.
As incidents at the border gain visibility, Canadian employers are urged to stay informed and prepare thoroughly to protect their staff travelling to the U.S.
