COVID-19 pandemic brings unpaid leaves into focus
In light of the COVID-19 pandemic, a number of Canadian jurisdictions have introduced new unpaid job-protected statutory leaves for employees who are required to take time off work due to quarantine, care for family members, personal illness, or orders relating to public health. In addition, certain existing unpaid statutory leave periods may also apply to COVID-19 related absences by employees. Employers will want to be aware of these rights and the impact they may have on pension and retirement plans.
The federal government has amended the Canada Labour Code (the “Code”) to create a leave related to COVID-19 of up to 16 weeks, or, if another number of weeks is fixed by regulation, that number of weeks. The COVID-19 leave will be in place until October 1, 2020, at which time it is scheduled to be removed from the Code.
The federal government has also created a new 16-week quarantine leave under the existing medical leave of absence provided under the Code, effective October 1, 2020.
Ontario has created a new form of job-protected leave for employees affected by a designated infectious disease, such as COVID-19. The leave is also available to employees who need to be away from work to care for children due to school or daycare closures, or for the care, assistance and support of “specified individuals” which are specific relatives prescribed in the new legislation.
The government of Alberta initially provided 14 days of unpaid job-protected leave for employees to cover the self-isolation period that is being recommended by Alberta’s chief medical officer of health.
Alberta’s government subsequently extended access to this unpaid job-protected leave for a flexible duration, which is based on the circumstances of each case. The leave is also available to employees caring for children affected by school and daycare closures or illness, or for quarantined family members.
British Columbia has provided a job-protected leave for employees unable to work for reasons relating to COVID-19. The leave may be taken for as long as the circumstance requires them to be away from work.
In an effort to address job-protected illness or injury leave beyond the COVID-19 crisis, British Columbia also now allows employees to take up to three days of unpaid job-protected leave each year due to illness or injury after 90 days of consecutive employment with the same employer. If requested by the employer, the employee must provide reasonably sufficient proof that the employee is entitled to take the illness or injury leave. This change would bring British Columbia in line with other provinces in Canada.
Manitoba has announced an unpaid public health emergency leave for employees who require time away from work for reasons related to the COVID-19 pandemic. The leave applies as long as the circumstances set out in the legislation apply.
Saskatchewan has enacted a new unpaid job-protected public health emergency leave.
Newfoundland and Labrador
Newfoundland has created a new communicable disease emergency leave in response to COVID-19. The leave applies as long as the circumstances set out in the legislation apply.
New Brunswick has also created a new COVID-19 emergency leave. The leave applies as long as the circumstances set out in the legislation apply.
Pre-existing leaves may apply
In addition to the new forms of leaves set out above, pre-existing employment standards legislation relating to matters such as emergency leave, illness, or the care of a family member, among others, may apply to COVID-19 related absences by employees. Employers should be cognizant of these obligations when faced with an employee who is unable to work due to a COVID-19 related reason.
Pension and benefit coverage
Depending on the jurisdiction and whether the employee is obligated to contribute to a pension plan, an employer may be required to continue to continue pension and benefit coverage during the employee’s leave period.
Employers are also considering issues relating to the use of temporary lay-offs in light of the impact of COVID-19 on their businesses. In general, the treatment of pension plan members during temporary lay-offs will depend on the circumstances of the lay-off, relevant employment standards legislation and/or collective agreements, and any applicable provisions in the pension plan documents. Employers should also note the potential risk of constructive dismissal claims under the common law.
Issues relating to the rights of employees during the COVID-19 pandemic can be complex and raise considerable difficulty. As governments move to re-open the economy, employers will want to be aware of the rights of employees under employment standards legislation and the impact those rights may have on their pension and other retirement plans.
It is important to note that the circumstances qualifying employees for COVID-19 related leaves vary and each particular case must be considered in light of the legislation. Also, the usual requirements for advance notice to employers, written evidence of medical conditions and a minimum period of employment before taking a leave have been waived in most jurisdictions that have established special COVID-19 related leaves.