In an effort to both encourage and facilitate greater vaccination, the Provinces of Alberta and British Columbia have recently undertaken steps to remove barriers to the vaccination efforts in their respective jurisdiction and enact new entitlements for paid employee vaccination leave. For its part, the Province of Ontario has enacted legislation to temporarily provide employees with paid infectious disease emergency leave in an effort to both flatten the third wave of the COVID-19 pandemic and encourage the vaccination of workers.
Pursuant to Bill 71, Employment Standards (COVID-19 Vaccination Leave) Amendment Act, 2021, the Alberta Employment Standards Code was recently amended to provide employees in Alberta with protected and paid vaccination leave. As of April 21, 2021, all full and part-time employees in Alberta are now eligible to receive paid leave for each of their vaccination appointments.
Alberta employers must, upon request, provide each of their employees with up to 3 consecutive paid hours of leave to receive a COVID-19 vaccine. Where an employer believes it is warranted under the circumstances, they may grant a longer period to their employees. Regardless of the period granted, employers must ensure that their employees do not lose any earnings and or benefits during the vaccine leave period.
To access paid vaccination leave in Alberta, employees must provide their employer with "as much notice as is reasonable and practicable in the circumstances". Once this notice is received, an employer may request that the employee provide reasonably sufficient proof of their entitlement to the paid leave. This does not include or permit an employer to request:
- Information requiring the employee to disclose any underlying medical condition(s); or
- A record of immunization or medical certificate.
Seeking the above information is expressly prohibited under the Code amendments. However, this does not prohibit an employer from requesting an appointment confirmation from their employee as proof of qualifying for the leave.
On April 27, 2021, the BC legislature enacted Bill 3 – 2021: Employment Standards Amendment Act, 2021, which retroactively granted, as of April 19, 2021, both full and part-time BC employees paid leave for each dose of COVID-19 vaccine they receive, regardless of their length of employment.
Paid vaccination leave in BC requires that an employer provide their employees, on request, up to 3 hours to receive a COVID-19 vaccination. A formula is provided to establish an employee's respective compensation while using the paid leave, calculated as an employee's average hourly wage multiplied against hours of leave taken, with the average hourly wage being calculated by amounts paid to an employee during the preceding 30 calendar days, less amounts paid in overtime, divided by their total hours worked.
Upon receiving a request for paid vaccination leave, BC employers may request that the employee provides reasonably sufficient proof of their entitlement to the leave. The proof may be satisfied by proof of a vaccine appointment. Requiring that the employee request a note from a medical practitioner is expressly prohibited.
In addition to the forgoing, earlier amendments to the BC Employment Standards Regulation at the beginning of April 2021, via Order-in-Council No. 216, still remain in effect and provide for a general entitlement to unpaid leave accessible to employees receiving a vaccination against COVID-19 or assisting a dependent in receiving a vaccination. Pursuant to subsection 52.12(3) of the BC Employment Standards Act, employees in BC remain entitled to an additional protected period of unpaid leave, for as long as is necessary, to facilitate their own vaccination or assist with the vaccination of dependents.
On April 29, 2021, the Ontario Legislature adopted Bill 284, COVID-19 Putting Workers First Act, 2021. This Act modifies section 50.1, the Infectious Disease Emergency Leave provisions, of the Employment Standards Act, 2000 ("ESA") to provide employees with three days of paid leave and for employers to be compensated when employees take such paid leave.
Employees are entitled to claim the job-protected paid leave for any period between April 19, 2021 and September 25, 2021 for the following COVID-19-related reason:
- going for a COVID-19 test and/or staying home awaiting the results of a COVID-19 test
- being sick with COVID-19
- going to get vaccinated for COVID-19 or experiencing a side effect from a COVID-19 vaccination
- having been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other specified authority
- providing care or support to certain relatives for COVID-19-related reasons, such as when they are:
- sick with COVID-19 or have symptoms of COVID-19
- self-isolating due to COVID-19 on the advice of a medical practitioner or other specified authority.
If as part of an employment contract an employer already provides paid leave to their employees for any of the reasons enumerated above, such leave is inclusive of the new paid leave. In other words, if an employee is already entitled to sick leave, they are not entitled to further paid infectious disease emergency leave under the ESA, unless the employer provides less than three paid sick days, in which case the ESA will make up the difference. Similarly to previous unpaid COVID-19-related leaves, employers cannot request a medical certificate for employees to qualify for the three days of paid infectious disease emergency leave.
The provincial government will also reimburse the amount of infectious disease emergency leave pay that employers pay to their employees, up to $200 per employee per day taken. To be reimbursed, employers will need to apply to the Workplace Safety and Insurance Board ("WSIB"). The ESA sets out the general reimbursement process; however, the WSIB is to release the specific mechanism it will use in the coming days.
Because this new paid leave is retroactive to April 19, 2021, employers may need to assess if any of their employees are eligible for paid leave for this period, and if they are eligible for WSIB reimbursement.
Given the significant implications of these amendments, there is an expectation on the part of provincial authorities that employers and employees cooperate in accommodating and scheduling COVID-19-related leave. Provincial legislators have added a new resource in their toolkits to curb the spread of COVID-19. Consequently, it is now important that employers are mindful of these new obligations and how they impact their workplace.
For employers with questions regarding their obligations under any of the new amendments, please contact a member of Gowling WLG (Canada) LLP's Employment, Labour & Equalities Group.