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.
Employees in Canada who want to get vaccinated but lack a contractual or statutory right to paid time off to do so may be unable to afford the reduction in income that would ensue if they took time off work to get vaccinated. Several provinces have removed this deterrent by requiring employers to provide a COVID-19 vaccination leave to employees without loss of pay or other benefits. Some other provinces have created programs that reimburse eligible employers when their employees take time off for certain reasons related to COVID-19, including to get vaccinated.
Set out below is a list of the common law provinces in Canada that currently require employers to provide a COVID-19 vaccination leave, with information about the nature of each leave.1 This is followed by information about reimbursement programs in the common law provinces.
On March 18, 2021, Saskatchewan amended The Occupational Health and Safety Regulations, 2020, effective immediately, to provide for a Special Vaccination Leave that allows employees to take three consecutive hours during the workday without losing pay or other benefits to receive a COVID-19 vaccination. Workers are entitled to more than three consecutive hours if the employer determines the circumstances warrant a longer break from work.
On April 27, 2021, British Columbia’s Bill 3, Employment Standards Amendment Act, 2021, received Royal Assent. Bill 3 amends British Columbia’s Employment Standards Act to provide for up to three hours of paid COVID-19 vaccination leave for each request made for such leave, effective April 19, 2021. The employee is required to provide reasonably sufficient proof of their entitlement to the leave, but the employer is not permitted to request a note from a doctor or a nurse.
On April 21, 2021, Alberta introduced and passed Bill 71, Employment Standards (COVID-19 Vaccination Leave) Amendment Act, 2021, which amended Alberta’s Employment Standards Code to create a COVID-19 Vaccination Leave. In accordance with this leave, employers are required to provide employees, upon the employee’s request, up to a maximum of three consecutive hours of leave to receive a COVID-19 vaccination, or more than three consecutive hours if, in the employer’s opinion, a longer period is warranted by the circumstances. An employer must ensure that an employee does not lose any earnings or other benefits as a result of taking this leave. Before taking this leave, the employee must give the employer as much notice as is reasonable and practicable in the circumstances. Upon the employer’s request, the employee must, as soon as is practicable, provide reasonably sufficient proof that the employee is entitled to the leave but is not required to provide the employer with a medical certificate or record of immunization or to disclose to the employer any of the employee’s underlying medical conditions.
On April 29, 2021, Ontario enacted Bill 284, COVID-19 Putting Workers First Act, 2021. Bill 284 amended the Employment Standards Act, 2000 (ESA) to require employers to provide employees up to three days’ pay if they miss work for reasons relating to COVID-19, including because they are getting vaccinated or experiencing a side effect from a COVID-19 vaccination, retroactive to April 19, 2021, and until September 25, 2021. If, from April 19 through September 25, an employee is entitled to take paid leave under an employment contract to get vaccinated or because they are experiencing a side effect from a COVID-19 vaccination in an amount equal to or greater than the amount the employee is entitled to under the ESA, the employee’s entitlement under the ESA will be reduced by the employee’s entitlement under the contract.
An employer is required to pay the employee the lesser of $200 per day or the wages the employee would have earned had they not taken the leave. However, if the employee receives performance-related wages, including commissions or a piece work rate, the employee will be entitled to receive the lesser of $200.00 per day or the greater of (i) the employee’s hourly rate, or (ii) the minimum wage for the hours the employee would have worked had they not taken the leave.
The three days’ paid leave need not be taken consecutively. If an employee takes part of a day as paid leave, the employer may deem the employee to have taken an entire day of paid leave on that day.
Employees must advise the employer as soon as possible that they will be taking leave. Employers are not permitted to require an employee to provide a certificate from a qualified health practitioner as evidence of their entitlement to the paid leave. However, employers may require an employee to provide proof of their entitlement that is reasonable in the circumstances, at a reasonable time.
Eligible employers may apply for a reimbursement of payments from the Workplace Safety and Insurance Board (WSIB), up to a maximum of $200 per day per employee. If an employee’s regular rate of pay is less than $200 per day, reimbursement to the employer is no more than the employee’s regular rate of pay. Applications for reimbursement must be made within 120 days of the paid leave. After January 25, 2022, the WSIB will not accept applications from an employer for reimbursement of payments it made to an employee for paid leave.
Employers will not be reimbursed for payments made to an employee for a paid leave under an employment contract. Finally, if an employer received benefits under the Workplace Safety and Insurance Act, 1997 for the days on which an employee was on paid leave, the employer will not be reimbursed for payments made to an employee for paid leave.
On May 12, 2021, Manitoba’s Bill 73, The Employment Standards Code Amendment Act (COVID-19 Vaccination Leave) (Bill 73), received Royal Assent. Bill 73 amends Manitoba’s Employment Standards Code to entitle employees to three hours of paid leave each time they receive a COVID-19 vaccination. Employers will be required to pay employees the employee’s wage rate for regular hours of work during the pay period in which the leave occurs, unless the employee’s wage for regular hours of work varies from pay period to pay period; in that case, the employer will be required to pay the employee their average hourly wage. Employees will be required to provide their employer as much notice as is reasonable and practicable. Employers may request proof of entitlement, but may not request a medical certificate.
* * *
Although they do not require employers to provide employees with paid leave to get a COVID-19 vaccination, the following provinces recently announced programs to reimburse eligible employers when their employees take time off for certain reasons related to COVID-19, including to get a COVID-19 vaccination.
Prince Edward Island
On May 10, 2021, Prince Edward Island (PEI) established a COVID-19 Special Leave Fund that reimburses eligible employers for wages paid to PEI-based employees for scheduled time missed due to a COVID-19 vaccination appointment that could not be scheduled outside of work hours, and for other specified reasons related to COVID-19. For each employee, the employer is entitled to apply to the program for up to three days per week on two separate occasions (i.e., to a maximum of six days). The maximum reimbursement is $20 per hour or $160 per day per employee.
To be eligible for funding, the employee must not qualify for the Canada Recovery Benefit, miss less than 50% of scheduled time in a one-week period, and not have access to paid sick leave. Furthermore, the employer must, among other things, have physical operations in PEI, be registered to do business in PEI, and be in good standing with PEI’s Central Default Registry.
Eligibility began March 1, 2021 and will continue while Prince Edward Island remains under a Public Health Emergency.
On May 13, 2021, Nova Scotia (NS) announced a new COVID-19 Paid Sick Leave Program that reimburses employers for up to four days of wages for COVID-19-related sick leave, including for time taken by employees to get vaccinated. Although the four sick days need not be taken consecutively, they must be taken between May 10, 2021 and July 31, 2021.
The payment is calculated based on the employee’s current rate of pay up to a maximum of $20 per hour or $160 per day (the maximum total payment per employee is $640). To be eligible, the employee must miss less than 50% of their scheduled work time in a one-week period due to COVID-19.
The employee must be based in NS and not be entitled to paid sick leave under their employment agreement or be receiving benefits from other COVID-19 programs.
Employers are eligible to make an application for reimbursement for an employee’s sick days if, among other things, they have a permanent physical location in NS, are registered to do business in NS, and are in good standing with the province’s government. Applications for reimbursement open on May 26, 2021.
Bottom Line for Employers
Employers in any of the common law provinces that are statutorily required to provide paid COVID-19 vaccination leave to their employees are encouraged to become familiar with their obligations and their employees’ rights under the leave.
Employers are also encouraged to consider whether their employees’ employment contracts entitle them to paid time off to get the vaccine, or to paid sick leave, which employees may be able to utilize to get the vaccine.
Furthermore, employers in provinces that have programs that reimburse eligible employers when their employees take time off to get vaccinated are encouraged to become familiar with these programs to enable them to apply for reimbursement if they are eligible.
Employers should remember that an employee may refuse to be vaccinated on a ground covered by human rights legislation, such as religion or disability, or for a valid medical reason, such as an underlying medical condition that would make it dangerous for the employee to be vaccinated.
Finally, employers are encouraged to seek the support of employment counsel to help them understand their rights and obligations regarding paid COVID-19 vaccination leaves and reimbursement programs, and to draft any paid COVID-19 vaccination policies they may wish to implement.
1 As Quebec is governed by the civil law, it is not a common law jurisdiction and any relevant leaves or programs that are available in Quebec have not been included in this discussion.