2020 began with a global health outbreak: the coronavirus, or in medical terms, “2019-nCoV.” As the government of Canada has indicated the risk of further spread to and within Canada remains high, and as the situation evolves daily, there are a number of important points employers should keep in mind regarding leave entitlements, the duty to accommodate, and the right to refuse work and overtime.

Leaves

Employers have seen a rise in workplace leaves, as the situation has escalated. In addition to leaves provided for under contract or collective agreement, under employment standards legislation, employees are entitled to a number of leaves that could be triggered. In Alberta, British Columbia, and in Ontario, these include:

Alberta  British Columbia  Ontario 

COVID-19-related leave

On March 17, Alberta's Employment Standards Code was amended with the addition of the Employment Standards (COVID-19 Leave) Regulation (the COVID Leave Regulation). This leave requirement provides up to 14 days of unpaid job protected leave.

When Leave Triggered

  • The leave is available to any employee, regardless of length of service.
  • It is only available where an employee is unable to work because of quarantine.
  • The employee is not required to provide an employer with any advance notice prior to returning to work and a medical note is not required.
  • The COVID Leave Regulation is retroactive to March 5, 2020

This is an unpaid leave of absence. All other rules pertaining to leaves under the legislation apply.

 

Other statutorily protected leaves

 

  • Sick leave: Up to 16 weeks of unpaid sick leave
  • Leave for personal and family responsibilities: up to five days of unpaid leave
  • Critical illness of child leave: 36 weeks of unpaid leave if the virus has caused an employee's child to become critically ill
  • Compassionate care leave: 27 weeks of unpaid leave in the event of a seriously ill family member where there is significant risk of death

COVID-19-related leave

This is an unpaid leave for employees who:

  • have been diagnosed with COVID-19 or who are in quarantine or self-isolation in accordance with public health orders or guidelines;
  • are outside of British Columbia and cannot return due to travel restrictions;
  • are caring for an eligible person; or
  • have been directed by their employers not to work because of health concerns.

The leave lasts for as long as the circumstances that gave rise to the leave persist, and is retroactive to January 27, 2020.

 

Other statutorily protected leaves

 

  • Illness or injury leave: Up to three days of unpaid leave per year for personal illness or injury for employees with at least 90 consecutive days of employment.
  • Critical illness or injury leave to provide care or support to a critically ill family member: (i) up to 36 weeks for a family member under 19 years old, and (ii) up to 16 weeks for a family member who is 19 years old or above
  • Family responsibility leave: Up to five days of unpaid leave in order to meet responsibilities relating to the care or health of a child in the employee's care or another member of the employee's immediate family
  • Compassionate care leave: Up to 27 weeks of unpaid leave to provide care or support to a family member with a serious medical condition creating significant risk of death
 

COVID-19-related emergency leave

In Ontario, employees may now be entitled to unpaid, job-protected emergency leave if they will not be performing the duties of their position for one of two overarching reasons. The first relates to (i) the COVID-19 declared emergency, and the second, (ii) to the COVID-19 infectious disease emergency. In both cases, the government has enacted legislative or regulatory action to activate the ESA's emergency leave provisions.

1. Emergency leave (COVID-19 declared emergency).

Employees are entitled to go on emergency leave for the COVID-19 declared emergency where a causal connection is established between the employee's non-performance of his or her duties, and the COVID-19 declared emergency made on March 17 and extended thereafter.

In addition, the employee  must not be performing the duties of his or her position because of one of the following circumstances:

  • An order that applies to the employee made under section 7.0.2 of the Emergency Management and Civil Protection Act.
  • An order that applies to the employee made under the Health Protection and Promotion Act.
  • The employee is needed to provide care or assistance to an individual specified under subsection 50.1(8) of the ESA.

2. Emergency leave (for COVID-19 infectious disease emergency)

Retroactively to January 25, employees in Ontario may qualify to take unpaid, job-protected emergency leave if the reason for which they will not perform the duties of their position is because of one or more of the following reasons related to the COVID-19 infectious disease emergency, as follows:

  • The employee is under individual medical investigation, supervision or treatment related to COVID-19.
  • The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
  • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to COVID-19 issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
  • The employee is under a direction given by his or her employer in response to an employer concern that the employee may expose other individuals in the workplace to COVID-19.
  • The employee is providing care or support to an individual referred to in subsection 50.1(8) because of a matter related to COVID-19 that concerns that individual, including, but not limited to, school or day care closures.
  • The employee is directly affected by travel restrictions related to COVID-19 and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
  • Such other reasons as may be prescribed. On May 29, under Ontario Regulation 228/20: Infectious Disease Emergency, the government implemented new special temporary layoff measures that apply to non-unionized employees with reduced or eliminated hours of work, or reduced wages, during the COVID-19 period. For more information on this important deemed leave, please click here.

Both leaves apply regardless of the employee's length of service. With the exception of the ESA's deemed emergency leave (infectious emergencies) made under Regulation 228/20 which only applies to non-unionized employees, all other emergency leave (declared emergencies and infectious disease emergencies) entitlements apply to both unionized and non-unionized employees.

Other ESA protected leaves:

  • Sick leave: Three days of unpaid sick leave
  • Family responsibility leave: Three days of unpaid family leave
  • Family caregiver leave: Eight weeks of unpaid leave to care for a family member who has a serious medical condition
  • Critical illness leave to take care of a critically ill minor child who is a family member: Up to 37 weeks of unpaid leave to take care of a critically ill minor child who is a family member
  • Critical illness leave to take care of a critically ill adult family member: Up to 17 weeks of unpaid leave to take care of a critically ill adult family member
  • Family medical leave: 28 weeks of unpaid family medical leave if a family member has significant risk of death occurring within a period of 26 weeks or less
     

Federal jurisdiction

For federally regulated employees operating in the private sphere subject to the Canada Labour Code, employees are entitled to:

  • Leave related to COVID-19: Employees working in federally regulated workplaces are entitled to up to 16 weeks of unpaid, job-protected leave if they are unable or unavailable to work due to COVID-19  ̶  for example, due to quarantine, caring for family members due to COVID-19, or otherwise unable to work due to reasons related to COVID-19.
    • To take this leave employees must provide their employers with written notice, as soon as possible, of the reason and length of leave they intend to take and must notify their employers of any changes to the length.
    • This leave is temporary and is not retroactive.
    • The leave will be repealed on October 1, 2020.
    • Employees are eligible for CERB while on this leave.
    • The Canada Labour Code provides the minimum requirements for a COVID-19-related leave. If a collective agreement, policy or other arrangement provides better additional leave, including additional pay during the leave, employees are entitled to take that leave instead or in addition to the COVID-19 leave.
  • Other statutorily protected leaves:
  • Personal leave: Five days of leave to, among others, treat an illness or carry out responsibilities related to the health or care of any family member, the first three days being paid to employees with a minimum of three months of service

Medical leave: A leave of absence without pay of up to 17 weeks as a result of, among others, personal illness

Compassionate care leave: Up to 28 weeks of unpaid leave within a 52-week period to look after a family member who has a serious medical condition with a significant risk of death

Leave related to critical illness: Up to 37 weeks of unpaid leave to provide care or support to the child, and up to 17 weeks of unpaid leave to provide care or support to the adult

The requirement to provide a medical certificate from a health practitioner for the above leaves is temporarily suspended until September 30, 2020.

Qualifying criteria for leaves, generally

Employers should note that employee eligibility for these leaves varies depending on the length of the employee's service, the nature of the leave and the jurisdiction. In addition, some leave provisions also impose varying requirements on employees to provide their employers with proper notice and supporting documentation. Moving forward, employers should remain alive to these legal requirements and consider seeking legal counsel.

Accommodating employees

In addition to the above-noted leaves, employers may be required to accommodate employees under human rights legislation if they are suffering from an illness or if a family member needs care. This could, for example, include allowing employees to work remotely or under a modified schedule, or providing time off. For more on flexible work, including as a measure of accommodation, please click here.

Employee refusals

In all jurisdictions, employees have the right to refuse work if they have reasonable grounds to believe their workplace is dangerous or unduly hazardous from a health and safety perspective. In addition, some jurisdictions allow employees to refuse to work overtime in certain circumstances. For example, employees who work for a federally regulated employer are entitled to refuse overtime to tend to family-related obligations, which can include taking care of a sick family member. For more on how to manage work refusals in a COVID-19 world, please click here.

Take-aways

In light of the above, here are some best practices employers may consider:

  • Keep the workplace safe and healthy: Encourage employees to wash their hands often, especially after coughing, sneezing, or blowing their noses. Finally, employers should ensure frequently touched surfaces are clean and disinfected, and social distancing measures are respected. For employers already or soon to be reopening the workplace, learn more about how to develop risk mitigation strategies and measures in the workplace here. 
  • Update all relevant policies: Employers should ensure all policies related to leaves, managing absenteeism and providing accommodation in the workplace are up to date. This will facilitate managing employees who do not or refuse to report to work. Importantly, if employees do not come to work, employers should consider whether that time will be compensated. When reviewing such policies, employers should be cautious about unilateral changes to working conditions that could amount to constructive dismissal, particularly where they go beyond what is reasonably necessary to provide a safe and healthy work environment.

    On a related and important point, it should be noted that in Ontario, the government recently passed regulation that addresses constructive dismissal claims made under the Employment Standards Act, 2000, and during a specified period of time, due to reduced or eliminated hours of work or reduced wages. For more information on these important changes, please click here.
  • Respond to symptomatic employees properly: If an employee is exhibiting the typical symptoms of the coronavirus, or is asymptomatic but has been in contact with an infected person, he or she should not be allowed access to the workplace and should be sent home and advised to seek medical advice as soon as possible from his or her primary-care provider, local public health office, or by calling 811, or by any other means recommended by the federal or provincial government.
  • Consider alternative working options: If possible, to reduce the risk of transmission, employers may want to consider whether alternative work arrangements can be made to allow employees to work from home or outside the traditional workplace for a set period of time. For more on flexible work, please click here.
  • Promote awareness: To properly respond to the coronavirus' evolving status, employers should ensure management and employees are properly trained on what health and safety measures should be strictly observed at this time. Moreover, employers may also wish to advise employees on what to do should they have flu-like symptoms in the workplace.
  • Protect privacy: Should employees say they or a family member is sick, this information should be kept confidential. Employers should ensure all employee personal information be safely kept, disclosed only when legally permissible, and destroyed in a reasonable timeframe.
  • Stay informed: Employers should continue to stay updated on any new information published by public health authorities, and act accordingly. In the meantime, any travel to high-risk areas should be discouraged.

We will keep you updated as new information is made public. For employers operating in Quebec, please read our legal update for this jurisdiction here.

Originally published by Norton Rose, June 2020

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