This article was revised on March 25, 2020.
Multiple provincial governments have enacted new forms of leave, view our cross-Canada review of leave of absences here »
Have any governments announced special leaves of absences in response to COVID-19?
As it stands currently, two provincial governments have announced a form of statutory leave in response to COVID-19. It is likely that other provinces will follow suit. The details regarding these forms of leave are not definitively clear and are subject to change. We will continue to monitor the provisions that are ultimately put into place.
In addition to other statutory forms of leave, it is important for employers to remember that they are still subject to other forms of leave provided in an employment contract or workplace policies where applicable, such as paid sick days and personal leave of absence days. In some cases, a leave of absence for COVID-19 reasons may qualify for short-term disability coverage under a group or other insurance plan.
During a press conference on March 16, 2020, the Ontario provincial government announced that it will be bringing forth legislation to amend the Employment Standards Act, 2000 (the "ESA") to provide unpaid job protection for employees who are not able to work because they are:
- under medical investigation, supervision or treatment for COVID-19;
- acting in accordance with an order under the Health Protection and Promotion Act;
- in isolation or quarantine;
- acting in accordance with public health information or direction;
- directed not to work by the employer; or
- providing care to a person for a reason related to COVID-19 such as a school or day-care closure.
Employees will have a responsibility to advise their employer as soon as possible should they need to take this form of leave.
Once passed by the Legislative Assembly, the leave would be retroactive to January 25, 2020, which is the date the first presumptive case of COVID-19 was confirmed in Ontario. The Ontario Government advised there will not be a time limit for this leave, and also confirmed that the leave will not require employees to provide a medical note so that healthcare professionals are able to focus on treating those with identified health issues. Lastly, the Ontario Government confirmed that this will be an unpaid leave of absence, and they are working with the Federal Government to ensure that employees receive as much support as possible.
Employees subject to this leave of absence cannot be laid off or terminated under the ESA. Under a statutory leave of absence, the employer must continue benefits unless the employee elects in writing not to do so. The same consideration does not apply with a lay off.
On March 13, 2020, the Alberta Government announced that eligible Alberta employees will be entitled to a two-week paid, job protected leave if they are required to self-isolate or are caring for an ill family member with COVID-19. At present, this leave does not directly apply to Alberta employees who are temporarily laid off due to a business closure or are required to stay home to care for their children as a result of a school or daycare closure.
Employees will not be required to present medical certificates, nor will the usual 90-day minimum employment requirement apply in order to be eligible for such leave. While the leave was initially said to be paid, a regulation passed on March 17, 2020 confirms that the leave is in fact unpaid. As such, employees may be eligible for EI Sickness Benefits or support under the federal government's new Emergency Care Benefit. Alberta is also offering compensation under its recently announced Emergency Isolation Support program, which is meant to fill the gap until Emergency Care Benefit payments are available in mid-April.
The regulation further provides that the leave is retroactive to March 5, 2020 and can be extended if the chief medical officer recommends.
Employees cannot be terminated or laid off while taking this job protected leave, which is in line with the other job protected leaves set out in Alberta's Employment Standards Code. That said, most statutory leaves in Alberta provide a limited exemption to this prohibition where employers are required to shut down or suspend operations. In these situations, the Code permits employers to temporarily lay off employees. Employers are required to reinstate the employee in the same or comparable position with no loss of earnings. However, this exception does not apply to all leaves and at this time it is not currently known whether a similar exemption will apply to the 14-day paid job protected leave for COVID-19. Practically, though, an employee on this leave is unlikely to affect a company's business decision to shut down or suspend operations where conditions warrant such extreme measures, although it remains prudent to obtain counsel before proceeding in this regard.
Employers are not required under the Code to continue benefits during this leave of absence, unless there is a contractual obligation to do so (either with an individual employee or under a collective agreement). We recommend that employers verify any possible coverage with their benefits insurer.
Employee Eligibility for Employment Insurance Benefits
Employers should recommend to employees in these situations that they may be eligible for EI benefits, but should not make any promises to employees about whether they will qualify for benefits, as this determination is made by the Employment Insurance program, applying defined criteria. Employers should consult an employment and labour lawyer to confirm the appropriate code to use when issuing Records of Employment to their employees.
A Record of Employment ("ROE") will need to be issued once the employee experiences an interruption in earnings. Employment and Social Development Canada is now advising employers to use the following codes in box 16: "Reason for Issuing this ROE":
- When the employee is sick or quarantined: Code D (Illness or injury). Do not add comments;
- When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19): Code A (Shortage of work). Do not add comments.
- When the employee refuses to come to work but is not sick or quarantined: Code E (Quit) or Code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.
To learn more about workplace strategies for communicable illnesses and handling COVID-19 in your workplace, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.