COVID-19 & Employment Standards: Cross-Canada Review

To say COVID-19 has sped up the pace of change in employment law is an understatement. Usually it takes months (or even years!) to make changes to Canadian employment legislation, but now we are seeing significant amendments announced and in force on the same day.

In particular, the federal government and most of the provinces have responded to COVID-19 by quickly amending employment standards legislation. Key areas where we have seen changes are: leaves of absence, hours of work and termination of employment. Below is a cross-Canada review of the amendments we have seen since the COVID-19 crisis began.

Leaves of Absence

Most jurisdictions across Canada have added or updated an emergency or public health leave of absence.

The federal government kept it pretty simple, adding a new 16-week leave of absence (which may be extended) for employees unable or unavailable to work due to COVID-19. The federal leave is set to expire on October 1, 2020, when it will be replaced with a new 16-week medical leave for employees in quarantine.

Alberta provided 14 consecutive days of unpaid leave (which may be extended) for employees in COVID-19-related self-isolation or self-quarantine. It also added an exception to its current personal and family responsibility leave, entitling employees to an unpaid leave of absence to care for children due to school/daycare closures or self-isolated family members. This leave continues as long as recommended by the Chief Medical Officer.

British Columbia, Manitoba, New Brunswick, Newfoundland and Ontario added new public health leaves that are triggered in specified circumstances. Typically, employees in these provinces are entitled to an unpaid leave when they are not performing their work duties due to one or more of the following circumstances related to COVID-19:

• medical investigation, supervision or treatment;
• acting in accordance with a public health order;
• in quarantine, isolation or self-isolation per guidance or directives issued by public health authorities;
• employer direction not to work, due to concern about exposure to others;
• providing care to a family member (who is and who is not included as a family member varies from one jurisdiction to the next); or
• directly affected by travel restrictions and cannot reasonably be expected to return to the province.

British Columbia also added a new (unpaid) three-day sick leave for general illnesses or injuries.

Saskatchewan took a slightly different approach, adding a new public health emergency leave, entitling employees to a leave if they are:

• directed to isolate themselves by: their employer, a medical practitioner, the government of Saskatchewan, or the chief medical officer; or
• they have to care for a child or adult family member affected by the public health order.

Saskatchewan employees are entitled to be paid their regular wages and benefits during the leave if they are authorized by their employer to work at home, and comply with any requirements set out by the chief medical officer or the government.

It is also worth noting that while Nova Scotia did not add any new leaves of absence in response to COVID-19, employees in that province were already entitled to an unpaid leave when an emergency is declared or a medical officer issues a direction/order that:

• prevents employees from performing work duties; or
• requires employees to care for a family member.

Retroactive

Most provinces deemed these new emergency/public health leaves of absence to come into force when cases first arose in their jurisdiction:

• Alberta: March 5, 2020 (changes to personal and family responsibility leave effective as of March 17, 2020)
• British Columbia: January 27, 2020
• Manitoba: March 1, 2020
• New Brunswick: March 12, 2020
• Newfoundland: March 14, 2020
• Ontario: January 25, 2020
• Saskatchewan: March 6, 2020

Medical Certificates

Generally, employees are not required to provide medical certificates in support of these new emergency/public health leaves of absence.

In addition, certain governments waived medical certificate requirements for other leaves of absence:

• Federal: compassionate care, critical illness and medical leaves;
• Alberta: personal and family responsibility leave; and
• Manitoba: compassionate care, critical illness, organ donor, pregnancy and sick leaves.

Hours of Work

Alberta also took steps to provide employers with increased flexibility by temporarily removing requirements to:

• provide 24 hour written notice of shift changes; and
• 2 weeks’ notice of changes to work schedules for those under an averaging agreement.

Quebec issued an order requiring most businesses, including grocery stores, to close on Sundays during the month of April.

Termination of Employment

A few provinces also made changes with respect to termination of employment.

As a part of its leave of absence amendments, British Columbia included transitional provisions, requiring employers to reinstate any employees who were dismissed due to a COVID-19 related leave from January 27 to March 23, 2020. More recently, British Columbia extended the period for a temporary layoff (related to COVID-19) to be considered permanent (i.e., requiring an employer to provide employees with written working notice of termination and/or pay severance) from 13 to 16 weeks.

Alberta and Manitoba made similar changes. Alberta increased the maximum time for temporary layoffs from 60 days to 120 days retroactive to March 17, 2020.

Typically, Manitoba deems a lay-off for one or more periods exceeding 8 weeks within a 16-week period to be a termination of employment. Manitoba added an exemption from this provision for the period from March 1, 2020 until the day on which the COVID-19-related state of emergency is ended.

In addition, Alberta removed the requirement to provide group termination notice to employees if an employer intends to terminate the employment of 50 or more employees.

As economies begin to reopen across the country, we may see another round of amendments -aimed at facilitating safe operations.