A cross-Canada review of new rules and regulations relating to leave of absences in response to COVID-19

This article was updated on April 23, 2020.

We expect that there will be new information available due to constant developments and rapidly changing information. We will continue to keep you posted as more developments occur but this article is current as of April 23, 2020.

As the impact of the novel coronavirus (COVID-19) continues to be felt globally, governments across Canada are taking measures to help alleviate the resulting pressures on their workforces. To assist employers to prepare and respond effectively to the ever-changing situation, we have summarized the new rules and regulations with respect to leave of absences, starting with the federal government and following with provincial governments in alphabetical order.

The Federal Government

COVID-19 Leave and Changes to Existing Leaves of Absence

Bill C-13, the COVID-19 Emergency Response Act, received Royal Assent on March 25, 2020, which rapidly implemented and administered measures to protect Canadians' health and stabilize the Canadian economy.

Part 10 of the Act amends the Canada Labour Code ("CLC") and created a temporary COVID-19 related leave under the CLC, which provides that every employee in a federally regulated workplace is entitled to an unpaid, job-protected leave of absence for up to 16 weeks (or another number of weeks if prescribed by regulation) if the employee is "unable or unavailable to work" for reasons related to COVID-19.

The parameters of this leave are very broad. For example, employees may take this leave if they are being quarantined or asked to self-isolate as a result of COVID-19, required to provide care to a family member as a result of COVID-19, or are otherwise unable or unavailable to work for reasons related to COVID-19. To take this leave, employees must:

1. provide their employer with written notice, as soon as possible, of the reason for the leave and the length of leave they intend to take; and
2. notify their employer in writing, as soon as possible, of any changes to the length of the leave.

A medical note substantiating an entitlement to the leave is not required. As a part of the CLC amendments, medical certificate requirements for taking a compassionate care leave, critical illness leave or medical leave are suspended until September 30, 2020.

All pension, health and disability benefits must be continued for the length of the COVID-19 leave. If the employee is responsible for a portion of the premiums, he or she must pay those contributions for the period of any leave within a reasonable time unless he or she advises that benefits will be discontinued within a reasonable time after commencing the leave.

An employee is entitled, on written request, to be informed in writing of every employment, promotion or training opportunity that arises during the period they are on a COVID-19 related leave for which they are qualified.

An employer is prohibited from dismissing, suspending, laying off, demoting or disciplining an employee because the employee intends to take or has taken a COVID-19 related leave or taking such an intention or absence into account in any decision to promote or train the employee. However, if an employee is unable to perform the work previously performed by them after taking the leave, then the employer may assign that employee to a different position with different terms of employment.

While on COVID-19 leave, employees may be eligible for the new Canada Emergency Response Benefit announced on March 25, 2020. Application for this benefit will be available in April 2020.

Other changes were also implemented, such as the ability for an employee to interrupt some existing leaves, or interrupt or postpone their vacation.

Quarantine Leave

On September 30, 2020, medical certificate requirements will be reinstated.

On October 1, 2020, the COVID-19 leave will be repealed and a new provision under the CLC will automatically come into effect, which allow employees to access medical leave if they are in quarantine.

The full text of the legislation can be reviewed here.

Alberta

On March 13, 2020, the Alberta government announced that changes to the Employment Standards Code (Alberta) would be made to allow employees who are required to self-isolate or are caring for a loved one with COVID-19 to take 14 days of unpaid, job-protected leave.

The new regulation was adopted on March 17, 2020 (with application retroactive to March 5, 2020) and provides the following, among other things:

1. the leave applies to all individuals that are required to self isolate or self-quarantine as may be recommended by the Alberta Chief Medical Officer (e.g. if an individual shows symptoms or has had close contact with an individual who has tested positive for COVID-19, such as a family member; travellers returning to Canada);
2. general legislative requirements to qualify for a leave of absence, such as obtaining a medical note or having worked for an employer for at least 90 days, are not applicable; and
3. the Minister may extend the length of the leave if recommended by Alberta's Chief Medical Officer.

As well, the regulation states that an employee under quarantine is not required to give any written notice or any notice to the employer of the date the employee intends to return to work.

The full text of the legislation can be reviewed here.

British Columbia

On March 23, 2020, the Government of British Columbia announced that amendments to the Employment Standards Act (British Columbia) will be made in order to put in place safeguards to protect employees amidst COVID-19, including, without limitation, amendments to prevent layoff of employees who are forced to stay home from work due to COVID-19.

COVID-19 Leave

Employees who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk, are able to take an unpaid, job-protected leave if they are unable to work for reasons relating to COVID-19 in the following circumstances:

1. the employee has been diagnosed with COVID-19 and is acting in accordance with
   1. instructions or an order of a medical health officer, or
   2. advice of a medical practitioner, nurse practitioner or registered nurse;
2. the employee is in quarantine or self-isolation in accordance with
   1. an order of the provincial health officer,
   2. an order made under the Quarantine Act (Canada),
   3. guidelines of the British Columbia Centre for Disease Control, or
   4. guidelines of the Public Health Agency of Canada;
3. the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work;
4. the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;
5. the employee is outside the province and cannot return to British Columbia because of travel or border restrictions; or
6. a prescribed situation exists relating to the employee.

An employee is entitled to leave under this section for as long as a circumstance described above applies. The entitlement to the leave is retroactive to January 27, 2020, the date that the first presumptive COVID-19 case was confirmed in British Columbia, and will remain in place until such time as COVID-19 no longer poses a heath risk to British Columbians.

If requested, the employee must provide reasonably sufficient proof of entitlement, but is not required to provide a medical note.

Illness or Injury Leave

Additionally, the British Columbia government also implemented permanent changes to the Employment Standards Act (British Columbia) to provide up to three days of unpaid, job-protected leave each year for employees who cannot work due to illness or injury. To qualify for such leave, employees must have worked for their employer for at least 90 days and may be required to provide reasonable evidence of eligibility, if requested by their employer.

Full details regarding this new form of leave can be reviewed here.

Manitoba

On April 14, 2020, the Government of Manitoba advised that it is proposing new provisions to the Employment Standards Code that would allow employees to be away from work for specified reasons related to COVID-19. Bill 55 provides that an employee will be able to take as much unpaid time off work as needed if:

1. the employee is under medical investigation, supervision or treatment;
2. the employee, as a result of information or directions issued or provided by a health officer, health professional, Health Links-Info Santé, the Government of Manitoba or the Government of Canada,
   1. is required to quarantine or isolate themselves, within the meaning of The Public Health Act, or
   2. is subject to self-isolation or any other measure that results in their inability to work;
3. the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work;
4. the employee is providing care or support to a family member, including care or support needed to be provided as a result of the closure of a school or premises where child care is provided;
5. the employee is directly affected by travel restrictions and cannot reasonably be expected to travel to their workplace;
6. the employee is subject to an order made under The Public Health Act; or
7. the employee is acting in accordance with an order made under The Emergency Measures Act.

Employees may be required to provide their employer with reasonable verification of the necessity of the leave, but are not required to provide a certificate from a health professional or health officer as verification.

The new provisions would apply to any leave that started between March 1, 2020, and a date to be prescribed in regulation, which will be specified once the pandemic is over.

Full details regarding this new form of leave can be reviewed here.

New Brunswick

On March 26, 2020, the Government of New Brunswick announced that it will amend its employment standards legislation to provide job protection for workers who must take a leave of absence due to COVID-19. These amendments will allow an unpaid leave of up to 15 weeks to those who have COVID-19 or who are caring for someone with COVID-19.

The Government of New Brunswick also advised it is currently in discussions with provincial unions to develop workers' mobility agreements to help facilitate workers' mobility into jobs.

The Government of New Brunswick announced on March 16, 2020 that, based upon recommendations by its Chief Medical Officer of Health, all non-essential government services will be shut down effective March 17, 2020 until further notice. As a result, all non-essential public sector employees are asked to stay at home but will otherwise remain on the payroll.

Full details regarding this new form of leave can be reviewed here.

Newfoundland and Labrador

On March 26, 2020, the Government of Newfoundland and Labrador announced that it is introducing legislative amendments to provide employees with protections from losing their job if they must take time away from work as a result of COVID-19. Employees may now take a leave of absence (retroactive to March 14, 2020) for the following reasons:

1. The employee is under individual medical investigation, supervision or treatment related to a designated communicable disease;
2. The employee is acting in accordance with an order under the Public Health Protection and Promotion Act related to a designated communicable disease;
3. The employee is in isolation or quarantine or is subject to a control measure, including self-isolation, 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 or the Government, whether through print, electronic, broadcast or other means;
4. The employee is under a direction given by their employer in response to a concern of the employer that the employee may expose other individuals in the workplace to a designated communicable disease;
5. The employee is providing care or support to an individual for a reason related to a designated communicable disease that concerns that individual including a school or child car service closure;
6. 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
7. Other reasons prescribed in the regulations.

Employees will not be required to provide a medical note if they take the leave, but will have to provide evidence reasonable in the circumstances, at a time that is reasonable in the circumstances, that they are entitled to the leave.

The Government of Newfoundland and Labrador also announced on March 13, 2020 that, based upon recommendations by its Chief Medical Officer of Health, anyone returning from travel outside of the country is required to self-isolate for a period of 14 days upon their return. The province's 14-day self-isolation requirement is effective as of March 13, 2020 and compensation will be provided to any affected employees to ensure continuation of pay. However, we are unaware of any specific guidelines that have been published with respect to this compensation.

Full details regarding this new leave is available at www.gov.nl.ca/covid-19/.

Northwest Territories

To date, the Government of the Northwest Territories has not announced any upcoming changes with respect to its employment standards legislation in response to COVID-19. The Government of the Northwest Territories has advised of the following:

1. all Northwest Territories government employees will be able to access sick and/or special leave to deal with the impacts of COVID-19, if required, regardless of their current leave balances; and
2. all Northwest Territories government employees will continue to be paid through regular time or paid through a form of paid leave (e.g., special leave if caring for an ill dependent, providing childcare or self-isolating and sick leave if ill).

Nova Scotia

To date, the Government of Nova Scotia has not announced any upcoming changes with respect to its employment legislation in response to COVID-19. Nonetheless, Nova Scotia's Chief Executive Officer of Health announced on March 18, 2020 that, in order to increase the capacity of the province's health system to respond to COVID-19, employers cannot require a doctor's note if employees must be off work because they are be sick or need to self-isolate at home. The Government of Nova Scotia's webpage discussing COVID-19 also advises that all Nova Scotians should not leave the province and only leave home for essential items and services, which arguably may entitle some workers to an emergency leave of absence under the Labour Standards Code.

Full details regarding these developments can be reviewed here.

Nunavut

To date, the Government of Nunavut has not announced any upcoming any upcoming changes with respect to its employment standards legislation in response to COVID-19. Nonetheless, the Government of Nunavut's Chief Public Health Officer announced on March 13, 2020 that, effective as of March 13, 2020, sick notes will no longer be issued by the Department of Health until further notice and employers are recommended to waive the requirements for sick notes. Other measures taken by the Government of Nunavut includes providing 14 days of self-isolation paid leave to all Government of Nunavut employees experiencing flu-like symptoms or advised to self-isolate at home.

Ontario

On March 19, 2020, the Government of Ontario passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives.

The Act provides job protection for employees unable to work for the following reasons:

1. the employee is under medical investigation, supervision or treatment for COVID-19;
2. the employee is acting in accordance with an order under the Health Protection and Promotion Act;
3. the employee is in isolation or quarantine in accordance with public health information or direction;
4. the employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace;
5. the employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure; or
6. the employee is prevented from returning to Ontario because of travel restrictions.

Moreover, any employee will be able to take an infectious disease emergency leave to care for prescribed family members.

The Act also provides that a medical note will not be required; however, an employer may require the employee to provide evidence at a time and place that is reasonable in all of the circumstances. For instance, this may include such requests as a note from the daycare or evidence that the airline cancelled a flight.

Most employees and employers in Ontario are covered under the Act whether they work full-time, part-time, are students, temporary help agency assignment employees or casual workers.

These measures are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. They will remain in place until such time as COVID-19 no longer poses a heath risk to Ontarians.

The full text of this legislation can be reviewed here.

Prince Edward Island

To date, the Government of Prince Edward Island has not announced any upcoming changes with respect to its employment standards legislation in response to COVID-19. Nonetheless, effective as of March 15, 2020, the Government of Prince Edward Island has advised that it will establish three special cabinet committees as part of the province's response efforts to COVID-19, one of which will be dedicated to Labour and Social Supports.

Québec

Effective as of March 19, 2019, the Government of Québec implemented a program known as the Temporary Assistance Workers Program (PATT COVID-19). PATT COVID-19 applies to employees and independent contractors who reside in Québec and are required to be isolated or who decide to isolate themselves for the following reasons:

1. the employee or independent contractor contracted COVID-19;
2. the employee or independent contractor have travelled anywhere outside Canada and returned on or after March 12, 2020;
3. the employee or independent contract has symptoms related to the flu or a cold; or
4. the employee or independent contractor has been in contact with a person who has COVID-19.

If the employee or independent contractor falls into any of these categories and does not have any other sources of revenue, they will be entitled to receive an amount of $573.00 per week from the Québec government for a period of 14 days of isolation. The period of coverage can be extended up to a maximum period of 28 days. Additionally, in order to avoid putting more strain on the health system, the Quebec government recommended employers to waive the requirement for medical certificates.

Saskatchewan

On March 17, 2020, the Government of Saskatchewan government amended The Saskatchewan Employment Act (Saskatchewan) to guarantee access to unpaid job-protected leave amidst COVID-19. Amendments to the Act, which came into effect retroactively on March 6, 2020, include the following:

1. removal of the requirement of 13 consecutive weeks of employment with the employer before accessing sick leave;
2. removal of the doctor's note requirement; and
3. introduction of a new unpaid public health emergency leave which can be accessed in a public health emergency as determined by the World Health Organization or upon an order from the province to take measures to reduce the spread of COVID-19.

An employee is entitled to a public health emergency leave for the period during which an order of the chief medical health officer issued is in force if:

1. any of the following have directed employees to isolate themselves to prevent or reduce the spread of the disease that is the subject of the order:

1. the employer of the employees;
2. a duly qualified medical practitioner;
3. the Government of Saskatchewan;
4. the chief medical health officer; or

2. the employee is required to provide to care and support to the employee's child family member who is affected by a direction or order of the Government of Saskatchewan or an order of the chief medical health officer.

Under the public health emergency leave, employees are entitled to be paid their regular wages and are entitled to their regular benefits during the leave if they are authorized by their employer to work at home during that period, comply with the measures set out in the order of the chief medical health officer, and comply with any additional requirements set out in an applicable order.

Details regarding this new form of leave can be reviewed here.

Yukon

On March 26, 2020, the Government of Yukon announced the Paid Sick Leave Program, which allows Yukon workers or those self-employed who are without sick leave to stay at home if they are sick and required to self-isolate for 14 days and still meet their basic financial needs. All eligible Yukon employers and self-employed individuals may apply.

Details regarding the Paid Sick Leave Program can be reviewed here.

As well, the Government of Yukon passed the Leave (COVID-19) Regulation on March 26, 2020. An employee is now entitled to a leave of absence without pay for a period of up to 14 days if the employee requires the leave:

• because the employee is subject to a health protection measure; or
• to care for the employee's child or an eligible person while the child or eligible person is subject to a health protection measure.

A health protection measures is defined as:

• A quarantine order, or a restriction imposed by a health officer pursuant to a quarantine order, made under the Public Health and Safety Act that applies to the individual;
• A restriction on the free movement of the individual, imposed on, or suggested in relation to, the individual by or under the authority of the chief medical officer or health or the Chief Public Health Officer of Canada;
• A restriction on the free movement of the individual recommended by a medical practitioner who provides health care to the individual and recommends the restriction because of a condition of the individual, whether or not the individual themselves has been diagnosed with, or suspected of having been exposed to, COVID-19; or
• Hospitalization of the individual for medical investigation, supervision or treatment.

An eligible person, in relation to the employee, means a person who:

• Is 19 years of age or older, and
• Because of illness, disability or any other reason, is under the day-to-day care and control of the employee.

An employee who takes a leave of absence must give their employer as much notice as practicable in the circumstances, and a leave of absence must be taken in one continuous period. Employees have also been exempted from the requirement to produce a medical certificate.

This leave is in effect for 90 days after March 26, 2020.

Conclusion

We will continue to monitor and stay afloat of any upcoming legislative changes with respect to leave of absences and other related issues across the provinces and territories in Canada.

The information in this article is an overview of the recent developments in the rules and regulations relating to leaves of absences in Canada; however, it is not intended to provide a comprehensive review of all potential issues.

If you have any questions about how the aforementioned developments may affect your workforce, please contact a member of the Employment, Labour & Equalities Group.