Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated: April 9, 2021
In response to the COVID-19 crisis, the governments of a number of jurisdictions in Canada have amended their employment standards legislation to entitle employees to emergency unpaid job-protected leave when they are unable to work due to the declaration of a state of emergency or for reasons related to the designation of COVID-19 as an infectious disease.
We wrote here about the Government of Ontario’s enactment on March 19, 2020, of Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 in response to the COVID-19 crisis to create the new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies.
Below we discuss similar measures taken by governments in other Canadian jurisdictions.
An update from the federal government provides that as of October 2, 2020, as part of Bill C-4, the COVID-19 leave of absence has been changed to allow unpaid leave for federally-regulated employees lasting:
- up to two weeks (or another number of weeks per regulation) if the employee is unable to work because they:
- have (or may have) contracted COVID-19;
- have underlying conditions, are undergoing treatments or have contracted other sicknesses that, in the opinion of a medical/nurse practitioner, person in authority, government or public health authority, would make them more susceptible to COVID-19; or
- are in isolation per advice of their employer, medical/nurse practitioner, person in authority, government or public health authority for reasons related to COVID-19;
- up to 26 weeks (or another number of weeks per regulation) if the employee is unable to work because they must care for a child under age 12 or a family member (includes anyone whom the person considers to be like a close relative or who considers the person to be like a close relative) who requires supervised care. (Any period of leave taken by an employee under the current COVID-19 Leave does not count towards the 26 weeks.)
These measures will be repealed on September 25, 2021.
This has led to the corresponding repeal of previous amendments to the COVID-19 leave in the Canadian Labour Standards Regulation. Previously, in order to align with the increase to the maximum number of weeks a worker is eligible to receive in Canada Emergency Response Benefit (CERB) payments, the maximum allowable length of leave related to COVID-19 Canada Labour Code leave for employees working in federally-regulated workplaces had been extended from 24 weeks to 28 weeks. The amount had also previously been increased from 16 weeks to 24 weeks.
Additional features of the leave include:
- Employees are required to provide written notice of the leave as soon as possible, which must include their reasons for taking the leave and its length. Employees are not required to provide a certificate from a health care practitioner.
- Employers are entitled to require a written declaration in support of the reasons for the leave and of any change to its length.
- Employers may not dismiss, suspend, lay off, demote or discipline employees because they intend to take or have taken the leave, although they may assign them to a different position if on their return they are unable to perform the work that they performed prior to their absence.
- Employees are entitled, on written request, to be informed in writing of every employment, promotion or training opportunity that arises during the period when they are on qualified leave.
- The employees’ pension, health and disability benefits, and seniority continue to accumulate while they are absent on the leave; however, the employees are required to continue to pay their share of required contributions to benefits (if any), within a reasonable time, unless they notify the employer of their intention to discontinue contributions during that period. Non-contribution by the employee does not impact employment status. If an employer pays contributions to a benefit, it must continue to pay them during the employee’s leave of absence, unless the employee does not pay the employee’s contributions, if any, within a reasonable time.
Prince Edward Island
On June 18, 2020, Prince Edward Island passed Bill 38, An act to amend the Employment Standards Act (No.3). Bill 38 adds a new unpaid emergency leave to the Employment Standards Act, which is deemed in force as of March 16, 2020.
Employees are entitled to the leave if they are unable to perform their work duties due to an emergency and they are:
- The only person reasonably able to provide care or assistance to a family member who requires care or assistance due to an emergency declaration, order or direction, and providing this care or assistance has the effect of preventing the employee from performing their work duties;
- In isolation or quarantine, or subject to a control measure, including self-isolation, implemented as a result of information or directions issued by the Chief Public Health Officer related to a communicable disease;
- Under a direction given by their employer in response to the employer’s concern that the employee may expose other persons in the workplace to a communicable disease; or
- Out of the province and directly affected by a travel restriction related to a communicable disease and in the circumstances cannot reasonably be expected to return to the province.
An employee’s “family member” is:
- a member of their immediate family;
- a member of their extended family;
- a niece, nephew, foster parent, ward or guardian;
- any person who they consider to be like a person described above; or
- any other person who is a member of a class of persons that is prescribed to be family members by the regulations for the purposes of this section.
The employee must give the employer as much notice as is reasonably possible of their intention to take an emergency leave. If the employee is required to take the leave before they can give notice, they must advise the employer as soon as possible after the emergency leave begins.
An employee must provide to the employer, on request and within a reasonable time in the circumstances, evidence reasonable in the circumstances that they are entitled to the emergency leave; however, the employee is not required to provide a certificate from a medical or nurse practitioner.
The emergency leave continues as long as the emergency continues and prevents the employee from performing their work duties. It ends on the day the emergency is terminated or no longer prevents the employee from performing their work duties.
When an employee returns to work following the end of the emergency leave, the employer must permit the employee to resume work in the position the employee held immediately before the emergency leave began. If that position no longer exists, the employer must permit the employee to resume work in a comparable position, with not less than the same wages and benefits the employee would have received if they had not taken the emergency leave.
On March 26, 2020, the Government of Newfoundland passed the COVID-19 Pandemic Response Act (Bill 33), which, among other things, amended the province’s Labour Standards Act (LSA) by adding a new Communicable Disease Emergency Leave. On that same day, Newfoundland published Regulation 22/20, which designated COVID-19 a communicable disease for purposes of the new leave, and deemed that the leave went into force on March 14, 2020.
Newfoundland’s Communicable Disease Emergency Leave entitles an employee to an unpaid leave of absence where the employee will not be performing the duties of their position for one or more of the following reasons related to a designated communicable disease:
- the employee is under individual medical investigation, supervision or treatment related to a designated communicable disease;
- the employee is acting in accordance with an order under the Public Health Protection and Promotion Act related to a designated communicable disease;
- the employee is in isolation or quarantine or is subject to a control measure, including self-isolation, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated communicable disease issued to the public, in whole or in part, or to one or more individuals, by the Chief Medical Officer of Health or the Government of the province whether through print, electronic, broadcast or other means;
- the employee is under a direction given by their employer in response to the employer’s concern that the employee may expose other individuals in the workplace to a designated communicable disease;
- the employee is providing care or support to an individual referred to below for a reason related to a designated communicable disease that concerns that individual, including a school or child care service closure;
- the employee is directly affected by travel restrictions related to a designated communicable disease and, under the circumstances cannot reasonably be expected to travel back to the province; and
- other reasons prescribed in the regulations.
An “individual” that the employee is providing care and support to for purposes of paragraph (e) above includes:
- the employee's spouse;
- a parent, step-parent or foster parent of the employee or the employee's spouse;
- a child, step-child or foster child of the employee or the employee's spouse;
- a child who is under legal guardianship of the employee or the employee's spouse;
- a brother, step-brother, sister or step-sister of the employee;
- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse;
- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
- a son-in-law or daughter-in-law of the employee or the employee's spouse; and
- any individual prescribed in the regulations as a family member for the purposes of this section.
Additional features of the leave include:
- The employer may require an employee who takes the leave to provide evidence of entitlement to the leave reasonable in the circumstances, at a time reasonable in the circumstances. The employer may not require an employee to provide a medical certificate from a medical practitioner or nurse practitioner as evidence.
- An employee is entitled to take the leave starting on March 14, 2020, and for as long as COVID-19 is designated by the regulation for the purpose of the Communicable Disease Emergency Leave.
- An employer may not dismiss an employee because the employee intends to take, applies for or takes the leave.
- Where an employee is dismissed by their employer or is given a notice of dismissal by their employer, the onus is on the employer to prove that the reason for the dismissal is unrelated to the fact that the employee intends to take the leave, applied for it, or took it.
- The employer must reinstate an employee at the end of their leave on terms and conditions not less beneficial than those that existed before the employee’s leave began.
- Unless the employer and the employee agree otherwise, a period of the leave will not count towards the application of the rights, benefits and privileges conferred by the LSA upon an employee.
- The period the employee works when they resume their employment following the leave must be considered continuous with the period worked before the leave.
On March 23, 2020, the Government of British Columbia enacted Bill 16, Employment Standards Amendment Act (No. 2), 2020, which amended the B.C. Employment Standards Act to add, among other things, a new unpaid leave of absence for COVID-19.
Pursuant to the new leave, an employee is entitled to the COVID-19 leave in any of the following circumstances for as long as the circumstance apply to them:
- the employee has been diagnosed with COVID-19 and is acting in accordance with:
- the instructions or an order of a medical health officer, or
- the advice of a medical practitioner, nurse practitioner or registered nurse;
- the employee is in quarantine or self-isolation in accordance with:
- an order of the provincial health officer,
- an order made under the Quarantine Act (Canada),
- guidelines of the British Columbia Centre for Disease Control, or
- guidelines of the Public Health Agency of Canada;
- the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work;
- the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;
- the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
- a prescribed situation exists relating to the employee.
An "eligible person" referred to in (d) above with respect to an employee, means any of the following:
- a child who is under the day-to-day care and control of the employee by way of agreement or court order or because the employee is the child's parent or guardian;
- a person who
- is 19 years of age or older,
- is unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of the person's parent or former guardian, and
- is under the day-to-day care and control of the employee, who is the person's parent or former guardian;
- a prescribed person.
Additional features of the leave include:
- The employer may not ask the employee to provide a note from a medical practitioner, nurse practitioner or registered nurse. However, the employer can require the employee to provide reasonably sufficient proof that a circumstance described above applies to them, as soon as practicable.
- The COVID-19 leave is retroactive to January 27, 2020, the date when the first presumptive COVID-19 case was confirmed in the province.
- If an employer terminated the employment of a person on or after January 27, 2020, but before March 23, 2020, due to any of the circumstances related to COVID-19 listed above, the employer must offer the employee re-employment in the same or a comparable position. If the employee is re-employed, their absence from employment following the termination is deemed to be a COVID-19 leave.
On April 1, 2021, British Columbia amended its Employment Standards Regulation to permit an employee to take COVID-19 leave in circumstances when:
- In the opinion of a medical health officer, medical practitioner, nurse practitioner or registered nurse, the employee is more susceptible to COVID-19 because the employee: (a) has an underlying condition; (b) is undergoing treatment, or (c) has contracted another illness; and the employee receives, or will receive, the Canada Recovery Sickness Benefit;
- The employee is providing care to an “eligible person,” which is expanded to include (a) the employee’s immediate family, (b) individuals referred to in s. 2(a) or (b) of the Family Member Regulation, or (c) an individual who requires care and considers the employee to be or, whom the employee considers to be, like a close relative (whether or not related to an employee by blood, adoption, marriage or common law partnership);
- The employee requires leave (i) to be vaccinated against COVID-19, or (ii) to assist a dependant who is being vaccinated against COVID-19.
On March 17, 2020, the Government of Alberta filed Regulation 29/2020, the Employment Standards (COVID-19 Leave) Regulation under the Employment Standards Code (Code). Deemed effective as of March 5, 2020, this new leave entitles employees to 14 consecutive days of unpaid leave if they are in self-isolation or self-quarantine as a result of COVID-19.
Additional features of the leave include:
- Employees who take this leave are not required to provide:
- a medical certificate;
- written notice to the employer; or
- notice to the employer of the date they intend to return to work.
- Employees remain entitled to 16 weeks’ unpaid leave in a calendar year for illness or injury.
- The length of the leave may be extended if the Chief Medical Officer recommends that it is necessary to:
- suppress COVID-19 in those who may already have been infected with it;
- protect those who have not already been exposed to COVID-19; or
- break the chain of transmission and prevent the spread of COVID-19.
On April 7, 2020, the Government of Alberta announced a number of amendments to the Code in response to the COVID-19 crisis, indicating that they will take effect immediately and be in place for as long as the government determines they are needed and the public health emergency order remains. One of these amendments is the creation of an unpaid job-protected leave for employees caring for children affected by school and daycare closures or ill or self-isolated family members due to COVID-19. The length of this leave is flexible and the 90-day employment requirement is waived.
On March 17, 2020, in response to the COVID-19 crisis, the Government of Saskatchewan passed Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020. Bill 207 amends The Saskatchewan Employment Act by adding a new Public Health Emergency Leave, which is deemed in force on March 6, 2020.
The new Public Health Emergency Leave applies if:
- A public health emergency has been determined by the World Health Organization and the chief medical officer has issued an order declaring:
- that the public health emergency applies to Saskatchewan; and
- that individuals in Saskatchewan must take measures to prevent or reduce the spread of disease, including isolating themselves from other individuals; and/or
- The chief medical officer of Saskatchewan declares that a disease is present in Saskatchewan that is sufficiently harmful to the public health, and that individuals in the province must take measures to prevent or reduce the spread of the disease, including isolating themselves from others.
An employee is entitled to a Public Health Emergency Leave for the period during which the order is in force in the following circumstances:
- The employee has been directed to isolate to prevent the spread of the disease by (a) the employees’ employer; (b) a duly qualified medical practitioner; (c) the Government of Saskatchewan; (d) the chief medical officer; or
- The employee is required to provide care and support to the employee’s child family member who is affected by a direction or order of the chief medical officer.
Additional features of the leave include:
- Employees are entitled to be paid their regular wages and regular benefits during the period when they are entitled to the public health emergency leave if:
- their employer authorizes them to work from home during that period;
- they comply with the measures set out in the order of the chief medical officer; and
- they comply with any additional requirements set out in an order that the Lieutenant Governor in Council is permitted to make.
- The Public Health Emergency Leave is added to the leaves that do not require four weeks’ written notice;
- An employee does not need to be employed by the employer for 13 consecutive weeks to be eligible for the leave;
- An employee is not required to provide a medical certificate to take the leave.
On April 15, 2020, the Government of Manitoba passed Bill 55, amending The Employment Standards Code of Manitoba to include a temporary, unpaid job-protected leave for employees who are unable to work due to circumstances related to the COVID-19 pandemic. The new Public Health Emergency Leave is effective retroactively to March 1, 2020.
Bill 55 also temporarily suspended the requirement for an employee to provide a certificate from a health professional related to taking a leave of absence, including the Public Health Emergency Leave, as well as leaves related to serious injury or illness, critical illness, organ donation, compassionate care leave, and maternity leave. Employers may request reasonable verification that the employee is entitled to the leave, but they may not require the provision of a medical certificate.
The Public Health Emergency Leave is available to employees that, in relation to the COVID-19 pandemic, are unable to perform their work due to the following circumstances:
- The employee is under medical investigation, supervision or treatment;
- The employee, as a result of information or directions provided by a health officer, health professional, Health Links – Info Santé, the Government of Manitoba or the Government of Canada, is required to quarantine or isolate themselves; or is subject to self-isolation or a measure that results in their inability to work;
- The employer, due to its concern about the employee’s exposure to others, has directed the employee not to work;
- The employee is providing care and support to a prescribed family member, including care or support provided as a result of the closure of a school or premises where childcare is provided;
- The employee is directly affected by travel restrictions and cannot reasonably be expected to travel to their workplace;
- The employee is subject to an order made under The Public Health Act; or
- The employee is acting in accordance with an order made under The Emergency Measures Act.
These eligibility requirements were later expanded by Bill 44, which permits employees to take a leave if they are, in the opinion of a health officer or health professional, more susceptible to COVID-19 due to an underlying medical condition, ongoing medical treatment or other illness.
The duration of the Public Health Emergency Leave is directly linked to the above-listed circumstances – the leave will be in place until none of those circumstances apply to the employee.
Employers must take care to keep information about the leave confidential. Unless required by law or with employee consent, employers must keep information related to employees taking a leave of absence private, sharing only with individuals in the workplace that need to know in order to carry out their duties.
On April 17, 2020, the Government of New Brunswick introduced and passed Bill 40, amending the New Brunswick Employment Standards Act to include a new unpaid emergency leave of absence. The COVID-19 Emergency Leave was introduced pursuant to New Brunswick Regulation 2020-29 under the Employment Standards Act, filed on April 28, 2020.
The COVID-19 Emergency Leave shall be granted by an employer, on application by the employee, where any of the following circumstances apply to the employee:
- The employee is under individual medical investigation, supervision or treatment related to COVID-19;
- The employee is acting in accordance with an order under the Public Health Act (ss. 33, 36 or 41) related to COVID-19;
- An employee is in quarantine or isolation or subject to a control measure, which may include self-isolation, and the quarantine, isolation or control measure was implemented as a result of information or directions related to COVID-19 issued or provided to the public, by a medical officer of health, a medical practitioner, a nurse practitioner, a nurse, Tele-Care, the Government of New Brunswick, the Government of Canada, or a department or agency of those governments, or a council of local government;
- The employee is given a direction from the employer in response to the employer’s concern that the employee may expose other individuals in the workplace to COVID-19;
- The employee is providing care or support to an individual with whom the employee shares a close family relationship because of a matter related to COVID-19, including the closure of schools, early learning and childcare facilities; and
- The employee is directly affected by travel restrictions related to COVID-19 and under the circumstances, cannot reasonably be expected to travel back to New Brunswick.
The new leave is effective retroactively, to March 12, 2020. Notably, the Regulation provides that where, on or after March 12, 2020, an employer has suspended, laid off, dismissed or otherwise terminated the employment of an eligible employee, the employer shall be deemed to have granted the employee an emergency leave.
Employees must provide their employer with notice in writing if they intend to take the emergency leave, including the anticipated commencement date and duration. Notice shall also include the purpose for which the leave is taken.
The duration of the leave is to the earlier of:
- The date on which the employer and employee agree;
- The date on which the purpose for taking the emergency leave referred to in the employee’s notice no longer exists; or
- The date on which the Regulation is appealed.
The duration of the leave may be extended where the employee notifies the employer that the purpose of taking the leave still exists, or if another prescribed purpose becomes applicable.
All material related to an employee taking this leave of absence must be kept confidential, except where required by law, where the employee consents to its disclosure, or where the disclosure is made to an officer, employee or agent of the employer who needs the record in order to perform their duties.
Bottom Line for Employers
Now that the governments in several jurisdictions in Canada have created new leaves related to the COVID-19 crisis, many employees throughout the country are on job-protected leave from their employment. Simultaneously, many Canadian employers have temporarily laid off their employees or are considering it. It is important for employers to consider how the new job-protected leaves operate in the context of a layoff. This will involve a complex analysis that should be conducted with the support of an experienced legal advisor.