COVID-19 - Answers to questions you may have as a Quebec employer

18 March 2020

This article was updated on March 19, 2020

A. Occupational Health and Safety

1. How do you protect the health and safety of your workers?

As an employer, you have a legal obligation to protect the health and safety of your workers and to take all necessary means to do so.  In particular, the employer must identify, control and eliminate dangers to the health and safety of his workers. That being said, workers must also take the necessary measures to protect their own health and safety as well as the health and safety of their co-workers.

Employers should remind employees of the precautions available to reduce the possibility of exposure to illness including COVID-19, such as

  • Washing hands often with soap and water for at least 20 seconds;
  • Disinfecting common surfaces such as equipment, countertops and door handles;
  • Avoid touching the eyes, nose or mouth with unwashed hands;
  • Covering the nose and mouth when coughing and sneezing by using a tissue or a flexed elbow;
  • Avoid contact with people who are sick.

Currently, Quebec public health authorities are encouraging employers to promote remote work in order to create social distancing and reduce the risk of contagion.

We  recommend that employers consider other measures specific to their workplace, such as reducing or cancelling group meetings and cancelling non-essential business trips. Employees with symptoms of COVID-19 should be instructed stay away from their workplace. If an employee has entered the workplace with COVID-19 symptoms, they should be asked to leave immediately in accordance with best HR practices.

2. Can employers implement travel restrictions?

We recommend that employers restrict as much as possible all work-related travel. Given the privacy rights of employees, employers should be careful before restricting personal travel of their employees.

However, since the Government of Quebec recommends voluntary isolation for 14 days upon return from any trip and the Public Health Agency of Canada urges travelers to avoid non-essential travel outside Canada; employers should at least request that employees disclose their personal travel plans so that the necessary measures can be implemented upon their return. Any disclosure required by employers should be managed in a manner that respects employees' privacy rights.

It is recommended that a policy or communication be provided to all employees in order to outline the employer's expectations in this regard. This policy/communication should include the obligation to disclose any travel outside the country and the isolation (quarantine) measures that apply when coming back from a trip abroad.

3. Can employers force employees to stay home and self-isolate?

An employer may require an employee to self-isolate in order to comply with the recommendations of government authorities. At this time, government authorities are recommending the following actions:

  • 14 days  of voluntary self-isolation for anyone returning from abroad;  
  • 14 days of mandatory self-isolation for all public service employees and health care, education and daycare workers, both private and public, returning from abroad;
  • Isolation of all persons diagnosed with COVID-19 or identified as having close contact with a person with COVID-19.

If an employer requires its employees to remain at home beyond the government recommendations then in effect, we recommend that the employer allow remote work or grant paid leave for the duration of the forced isolation.

4. Do employees have the right to refuse to work?

Under the Occupational Health and Safety Act, a worker may exercise a right of refusal if he has reasonable grounds to believe that the performance of his work exposes him to a danger to his health, safety or physical well-being. It should be noted that the Act refers to the notion of danger and not to a risk and therefore, this normally requires more than a simple contingency whose occurrence would be uncertain.

In our opinion, this remains relevant as long as the World Health Organization considers the risk of contracting the disease in Canada to be low. Thus, a worker who avails himself of his right of refusal must be persuaded that the work situation presents a real danger to his integrity and that any reasonable person in the same circumstances would come to the same conclusion.

If the employer and the worker's representative do not agree on the danger or the solution, they may request the intervention of a CNESST inspector. If the worker believes that the danger remains, he can maintain his right of refusal and wait for the inspector's intervention.

5. Can the CNESST close a workplace?

In the event that a workplace is proven to be unsafe because of the risks associated with COVID-19, a CNESST inspector may require its closure until the employer takes appropriate measures to correct the situation.

6. Is an employee affected by COVID-19 eligible to receive CNESST benefits?

If the worker contracted COVID-19 following an event that occurred out of or in the course of his work, he may be entitled to the usual benefits and services provided under the Act respecting industrial accidents and occupational diseases (AIAOD).

That being said, in a pandemic situation, it may be difficult to establish that an employee was infected in the workplace rather than outside the workplace.

B. Labour Standards

7. Is there a statutory leave for employees affected by COVID-19?

Many employees are granted sick leave in accordance with employer policies, collective agreements or short-term disability insurance plans.

For those who are not insured, the Act respecting labour standards allow employees to be absent from work for a period not exceeding 26 weeks in a 12-month period due to illness. If the employee has three (3) months of continuous service, the first two (2) days of this leave may be paid (provided that the employee has not already benefited from these paid days after taking them for a leave related to family obligations).

The employee may also be eligible for employment Insurance sickness benefits or emergency care benefits (Please refer to Section C).

8. Is there a statutory leave for employees having to care for a family member with COVID-19?

The Act respecting labour standards provides that an employee may be absent from work for a period of ten (10) days per year in order to fulfill obligations related to the state of health of a relative or a person for whom the employee acts as a caregiver.  The term "relative" includes the child, father, mother, brother, sister and grandparents of the employee or the employee's spouse, as well as the spouses of these persons, their children and the spouses of their children.

If the employee has completed three (3) months of continuous service, the first two (2) days of such leave may be compensated (provided the employee has not already benefited from these paid days as a result of taking sick leave). The employee must notify the employer of his absence as soon as possible and take the reasonable steps within his power to limit the leave and its duration. The employee may also be eligible for emergency care benefits (Please refer to Section C).

In addition to the above, the Act also allows an employee to be absent for up to 16 weeks in a 12-month period when he must stay with a relative or a person for whom he acts as a caregiver due to a serious accident or serious illness. This period may be extended up to 27 weeks of absence over 12 months if the ill person is suffering from a potentially fatal illness, as attested by a medical certificate. Depending on the specific circumstances, we are of the opinion that an employee could take advantage of these statutory leaves in the event that one of his relatives should be affected by COVID-19.

9. Is there a statutory leave for employees having to care for their children because of school and daycare closures?

As previously mentioned, the Act respecting labour standards provides that an employee may be absent from work for a period of ten (10) days per year in order to fulfill obligations related to the care, health or education of his child or the child of his spouse.

If the employee has completed three (3) months of continuous service, the first two (2) days of such leave may be compensated (provided the employee has not already benefited from these paid days as a result of taking sick leave). The employee must notify the employer of his absence as soon as possible and take the reasonable steps within his power to limit the leave and its duration. The employee may also be eligible for emergency care benefits (Please refer to Section C).

10. Are employees entitled to child-care services despite the government's announcement to close schools and child-care centers?

The Government of Quebec has announced the closure of all daycare services - CPE, subsidized, non-subsidized and family daycare services - for a period of two (2) weeks, from March 16, 2020, to March 27, 2020.

That being said, the Government of Quebec has announced that CPEs, daycare centers and family daycare services will remain open to accommodate the children of healthcare and essential services workers.

Thus, child-care services will be able to receive only the children of parents designated to provide essential services as declared by government decree. Essential services identified are those that have a significant and direct impact on the safety and health of the population. The list of these essential services is available on the Government of Québec's website.

11. Should an employer pay an employee in self-isolation or affected by COVID-19?

If an employee cannot provide his work performance, the employer has no obligation to pay him, since the payment of wages is normally the consideration for the work performed by an employee.

However, we consider that an employer who would require the isolation of an employee without such isolation being recommended by government authorities or a health professional should allow the employee to work remotely or should grant the employee paid leave for the duration of the isolation.

C. Employment Insurance

12. Is an employee affected by COVID-19 eligible for Employment Insurance benefits?

Employment insurance sickness benefits provide up to 15 weeks of income replacement to qualifying individuals who are unable to work due to illness or quarantine.

In the case of quarantine, the Record of Employment should indicate "quarantine" in Section 18.

In order to assist Canadians affected by COVID-19 or quarantined, the Canadian government has announced the elimination of the one-week waiting period for Employment Insurance sickness benefits.

Currently, a worker is eligible for Employment Insurance if s/he meets the following conditions:

  • Being unable to work for medical reasons;
  • Having suffered a decrease in weekly earnings of more than 40%;
  • Having accumulated 600 hours of insurable employment in the 52 weeks before the start of the claim or since the start of the last claim, whichever is shorter.

It should also be noted that the Government of Quebec announced the establishment of the Temporary Assistance Program for Workers affected by the Coronavirus on March 16, 2020, to allow self-employed workers or workers who do not have access other financial assistance (employer compensation, private insurance or government programs such as employment insurance) to receive up to $573 per week for a period of 14 days of isolation. The financial assistance could be extended to a maximum of four (4) weeks for infected individuals whose quarantine period must be extended.

13. Which employees are eligible for the emergency care benefit?

On March 18, 2020, the Government of Canada announced the creation of an emergency care benefit to support eligible workers. This exceptional program allows eligible employees that are unable to work to receive benefits of up to $900 every two weeks, for a maximum of 15 weeks. This program applies to the following workers:

  • Workers, including the self-employed, who are sick, quarantined, or who have been directed to self-isolate but do not qualify for Employment Insurance (EI) sickness benefits;
  • Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent or other dependents who are sick, but do not qualify for EI sickness benefits;
  • EI-eligible and non EI-eligible working parents who must stay home without pay because of children who are sick or who need additional care because of school closures.

D. Continuity of operations

14. How can you encourage the attendance of employees in key positions for your company?

Given the current circumstances, many employers have made the decision to pay all of their employees regardless of their presence at work.

In order to ensure business continuity, an employer could implement various measures to motivate its employees to continue working from home or to be present at the workplace, if their presence is deemed necessary. For example, employers could consider introducing an attendance bonus for employees who report to work or agree to reimburse taxi, parking or emergency childcare expenses incurred by their employees in order to allow them to travel to work and avoid using public transit.  

15. Can an employer downsize its workforce temporarily?

Yes, when there is a work shortage, the employer can temporarily lay off employees.

The layoff temporarily suspends the employment contract between the employer and the employee. The laid-off employee can therefore be recalled to work. The contractual relationship is maintained for the duration of the layoff.

The Act respecting labour standards does not provide the obligation to provide any official written notice or to pay any amount in the event of a layoff of less than six (6) months or if the employer is unable to predict the duration of the layoff.

16. Can an employer reduce the working hours of its employees?

In order to avoid layoffs, the Government of Canada is offering a work-sharing program that implements temporary measures to support employers and employees affected by the downturn caused by COVID-19. The program provides employment insurance benefits to eligible employees who agree to reduce their regular hours of work and share the work available during the business recovery period.

The Canadian government has introduced the following measures in order to respond to economic downturns caused by COVID-19:

  • Extend the Work-Sharing agreements by an additional 38 weeks;
  • Wave the mandatory waiting period;
  • Ease the recovery plan requirements.

If you would like to discuss the employment issues resulting from COVID-19, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.


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