ARTICLE
25 March 2020

A Cross-Canada Review Of New Rules And Regulations Relating To Leave Of Absences In Response To Covid-19

GW
Gowling WLG

Contributor

Gowling WLG is an international law firm built on the belief that the best way to serve clients is to be in tune with their world, aligned with their opportunity and ambitious for their success. Our 1,400+ legal professionals and support teams apply in-depth sector expertise to understand and support our clients’ businesses.
As the impact of the novel coronavirus (COVID-19) continues to be felt globally, governments across Canada are taking measures to help alleviate the resulting pressures on their workforces.
Canada Employment and HR
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As the impact of the novel coronavirus (COVID-19) continues to be felt globally, governments across Canada are taking measures to help alleviate the resulting pressures on their workforces. To assist employers to prepare and respond effectively to the ever-changing situation, we provide an overview of the key employer obligations engaged by recent rules and regulations in response to COVID-19—specifically, with respect to leave of absences.

Starting with the federal government, we have summarized the new rules and regulations from each province and territory with respect to leave of absences, in alphabetical order.

The Federal Government

On March 11, 2020, the Government of Canada announced changes to Canada's Employment Insurance (EI) sickness benefits in response to concerns about COVID-19. To date, Employment and Skills Development Canada ("ESDC") has waived the mandatory one-week waiting period for EI sickness benefits for employees who are in quarantine or who have been directed to self-isolate as a result of COVID-19.

As part of the new measures being implemented, the applications for EI sickness claims of employees under quarantine will be processed in priority. Also, a medical certificate to access such benefits will no longer be required in the following situations:

  1. when quarantine is imposed on an employee under federal or provincial legislation;
  2. when quarantine is imposed by a public safety officer;
  3. when quarantine is recommended by a public safety officer and the employee has been instructed to do so by an employer, nurse, physician or any other similar person in authority; or
  4. when an employee voluntarily places himself or herself in isolation because a family member or close relative with whom the employee has had contact is quarantined.

To date, the federal government has not announced any upcoming changes with respect to the Canada Labour Code in response to COVID-19.

Full details regarding these developments can be reviewed here.

Alberta

On March 13, 2020, the Alberta government announced that changes to the Employment Standards Code (Alberta) would be made to allow employees who are required to self-isolate or are caring for a loved one with COVID-19 to take 14 days of unpaid job-protected leave to cover the recommended self-isolation period. Additionally, general legislative requirements to qualify for a leave of absence, such as obtaining a medical note or having worked for their employer for at least 90 days, will not be required.

The new regulations were adopted on March 17, 2020 and provide, among other things, that the length of the leave could be increased and that its application is retroactive to March 5, 2020. Employees may take 14 days of job-protected leave if they are required to self-isolate, or if they are caring for a child or dependent adult that is required to self-isolate.

Full details regarding this new form of leave can be reviewed here.

British Columbia

On March 23, 2020, the Government of British Columbia announced that amendments to the Employment Standards Act (British Columbia) will be made in order to put in place safeguards to protect employees amidst COVID-19, including, without limitation, amendments to prevent layoff of employees who are forced to stay home from work due to COVID-19.

The Government of British Columbia has advised of the following:

  1. employees who travel outside of Canada are recommended to self-isolate for 14 days upon return, unless work-related travel to the United States is essential;
  2. employers are asked to waive the requirement for a doctor's note to allow employees to take sick leaves;
  3. employees who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk, will be able to take unpaid, job-protected leave if they are unable to work for reasons relating to COVID-19; and
  4. the unpaid, job-protected leave will be retroactive to January 27, 2020, the date that the first presumptive COVID-19 case was confirmed in British Columbia, and will remain in place until such time as COVID-19 no longer poses a heath risk to British Columbians.

Additionally, the British Columbia government also implemented permanent changes to the Employment Standards Act (British Columbia) to provide up to three days of unpaid, job-protected leave each year for employees who cannot work due to illness or injury. To qualify for such leave, employees must have worked for their employer for at least 90 days and may be required to provide reasonable evidence of eligibility, if requested by their employer.

Full details regarding this new form of leave can be reviewed here.

Manitoba

To date, the Government of Manitoba has not announced any upcoming changes with respect to its employment standards legislation in response to COVID-19. Similar to other jurisdictions, the Government of Manitoba has advised of the following:

  1. employers are encouraged to review their business continuity plans and take appropriate steps to ensure their employees can stay home due to COVID-19 without facing barriers such as the requirement for sick notes; and
  2. employers should also discontinue non-essential, work-related travel outside of Manitoba and encourage virtual meetings to reduce prolonged, close contact between individuals.

New Brunswick

To date, the Government of New Brunswick has not announced any upcoming changes with respect to its employment standards legislation; however, the New Brunswick government advised it is currently in discussions with provincial unions to develop workers' mobility agreements to help facilitate workers' mobility into jobs.

The New Brunswick government announced on March 16, 2020 that, based upon recommendations by its Chief Medical Officer of Health, all non-essential government services will be shut down effective March 17, 2020 until further notice. As a result, all non-essential public sector employees are asked to stay at home but will otherwise remain on the payroll.

Newfoundland and Labrador

To date, the Government of Newfoundland and Labrador has not announced any upcoming changes with respect to its employment standards legislation in response to COVID-19. Nonetheless, the Government of Newfoundland and Labrador announced on March 13, 2020 that, based upon recommendations by its Chief Medical Officer of Health, anyone returning from travel outside of the country is required to self-isolate for a period of 14 days upon their return. The province's 14-day self-isolation requirement is effective as of March 13, 2020 and compensation will be provided to any affected employees to ensure continuation of pay. However, we are unaware of any specific guidelines that have been published with respect to this compensation

Full details regarding these developments can be reviewed here.

Northwest Territories

To date, the Government of the Northwest Territories has not announced any upcoming changes with respect to its employment standards legislation in response to COVID-19. Nonetheless, the Government of the Northwest Territories has advised of the following:

  1. all Northwest Territories government employees will be able to access sick and/or special leave to deal with the impacts of COVID-19, if required, regardless of their current leave balances; and
  2. all Northwest Territories government employees will continue to be paid through regular time or paid through a form of paid leave (e.g., special leave if caring for an ill dependent, providing childcare or self-isolating and sick leave if ill).

Nova Scotia

To date, the Government of Nova Scotia has not announced any upcoming changes with respect to its employment legislation in response to COVID-19. Nonetheless, Nova Scotia's Chief Executive Officer of Health announced on March 18, 2020 that, in order to increase the capacity of the province's health system to respond to COVID-19, employers cannot require a doctor's note if employees must be off work because they are be sick or need to self-isolate at home. The Government of Nova Scotia's webpage discussing COVID-19 also advises that all Nova Scotians should not leave the province and only leave home for essential items and services, which arguably may entitle some workers to an emergency leave of absence under the Labour Standards Code.

Full details regarding these developments can be reviewed here.

Nunavut

To date, the Government of Nunavut has not announced any upcoming any upcoming changes with respect to its employment standards legislation in response to COVID-19. Nonetheless, the Government of Nunavut's Chief Public Health Officer announced on March 13, 2020 that, effective as of March 13, 2020, sick notes will no longer be issued by the Department of Health until further notice and employers are recommended to waive the requirements for sick notes. Other measures taken by the Government of Nunavut includes providing 14 days of self-isolation paid leave to all Government of Nunavut employees experiencing flu-like symptoms or advised to self-isolate at home.

Ontario

On March 19, 2020, the Government of Ontario passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (the "Act") to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives.

The Act provides job protection for employees unable to work for the following reasons:

  1. the employee is under medical investigation, supervision or treatment for COVID-19;
  2. the employee is acting in accordance with an order under the Health Protection and Promotion Act;
  3. the employee is in isolation or quarantine in accordance with public health information or direction;
  4. the employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace;
  5. the employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure; or
  6. the employee is prevented from returning to Ontario because of travel restrictions.

Moreover, any employee will be able to take an infectious disease emergency leave to care for prescribed family members.

The Act also provides that a medical note will not be required; however, an employer may require the employee to provide evidence at a time and place that is reasonable in all of the circumstances. For instance, this may include such requests as a note from the daycare or evidence that the airline cancelled a flight.

Most employees and employers in Ontario are covered under the Act whether they work full-time, part-time, are students, temporary help agency assignment employees or casual workers. Notwithstanding the above, the Act does not apply to employees in sectors that fall under federal jurisdiction, such as employees working for banks, airports, inter-provincial and international rail and federal crown corporations.

These measures are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. They will remain in place until such time as COVID-19 no longer poses a heath risk to Ontarians.

Full details regarding this new form of leave can be reviewed here.

Prince Edward Island

To date, the Government of Prince Edward Island has not announced any upcoming changes with respect to its employment standards legislation in response to COVID-19. Nonetheless, effective as of March 15, 2020, the Government of Prince Edward Island has advised that it will establish three special cabinet committees as part of the province's response efforts to COVID-19, one of which will be dedicated to Labour and Social Supports.

Québec

Effective as of March 19, 2019, the Government of Québec implemented a program known as the Temporary Assistance Workers Program (PATT COVID-19). PATT COVID-19 applies to employees and independent contractors who reside in Québec and are required to be isolated or who decide to isolate themselves for the following reasons:

  1. the employee or independent contractor contracted COVID-19;
  2. the employee or independent contractor have travelled anywhere outside Canada and returned on or after March 12, 2020;
  3. the employee or independent contract have symptoms related to the flu or a cold; or
  4. the employee or independent contractor have been in contact with a person who has COVID-19.

If the employee or independent contractor falls into any of these categories and does not have any other sources of revenue, they will be entitled to receive an amount of $573.00 per week from the Québec government for a period of 14 days of isolation. The period of coverage can be extended up to a maximum period of 28 days. Additionally, in order to avoid putting more strain on the health system, the Quebec government recommended employers to waive the requirement for medical certificates.

Full details regarding these developments can be reviewed here.

Saskatchewan

On March 17, 2020, the Government of Saskatchewan government amended the Employment Act (Saskatchewan) to guarantee access to unpaid job-protected leave amidst COVID-19. Amendments to the Employment Act (Saskatchewan), which came into effect retroactively on March 6, 2020, include the following:

  1. removal of the requirement of 13 consecutive weeks of employment with the employer before accessing sick leave;
  2. removal of the doctor's note requirement; and
  3. introduction of a new unpaid public health emergency leave which can be accessed in a public health emergency as determined by the World Health Organization or upon an order from the province to take measures to reduce the spread of COVID-19.

Full details regarding this new form of leave can be reviewed here.

Yukon

To date, the Government of Yukon has not announced any upcoming changes with respect to its employment legislation in response to COVID-19. Similar to other jurisdictions, employers have been advised to encourage and support employees to self-isolate in the event that symptoms associated with COVID-19 are present.

We will continue to monitor and stay afloat of any upcoming legislative changes with respect to leave of absences and other related issues across the provinces and territories in Canada. The information in this article is an overview of the recent developments in the rules and regulations relating to leaves of absences in Canada; however, it is not intended to provide a comprehensive review of all potential issues. If you have any questions about how the aforementioned developments may affect your workforce, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.

Read the original article on GowlingWLG.com

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.

ARTICLE
25 March 2020

A Cross-Canada Review Of New Rules And Regulations Relating To Leave Of Absences In Response To Covid-19

Canada Employment and HR

Contributor

Gowling WLG is an international law firm built on the belief that the best way to serve clients is to be in tune with their world, aligned with their opportunity and ambitious for their success. Our 1,400+ legal professionals and support teams apply in-depth sector expertise to understand and support our clients’ businesses.
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