Talya Nemetz-Sinchein is a litigation Associate at Singleton Reynolds. Her practice encompasses advocacy in the areas of insurance coverage, professional liability, workplace law, construction and complex commercial disputes
In response to the COVID-19 pandemic, Canadian provincial and federal governments have made amendments to their employment standards legislation. These amendments are aimed at protecting jobs and easing financial hardships for businesses during this time of unplanned closure. While intended to be temporary, the speed and severity with which viral outbreaks can arise means some of these amendments may be revised to apply more generally and remain even after the pandemic ends.
The BC government has twice extended the maximum allowable length for temporary layoffs under the Employment Standards Act ("ESA"). Currently, BC employers have up to 24 weeks to recall temporarily laid off employees prior to triggering a deemed termination. The BC government explained that this extension is to align the temporary layoff provisions with the federal Canada Emergency Response Benefit period. The government also said that this extended layoff period is not permanent and will be repealed “when no longer needed.”
Depending on the jurisdiction in which they operate, employers may or may not have the right to temporarily layoff employees. For example, in BC, despite being addressed in the ESA, employers in non-unionised environments do not have an automatic right to temporarily layoff employees; rather, there must either be: a right to do so specifically stipulated in their employment agreement; the employee specifically agrees to the layoff; or layoff is an implied industry practice.
Federally regulated employers, however, are able to temporarily layoff employees pursuant to the Canada Labour Code and Canada Labour Standards Regulations as well as collective agreements.
Two types of leave were introduced: COVID-19 related leave and Unpaid Illness or Injury Leave.
Covid-19 related leave
Right now, an employee acting in accordance with the instructions of health professionals who requests leave is entitled to unpaid leave if any of the following circumstances apply:
- the employee has been diagnosed with COVID-19;
- the employee is in quarantine or self-isolation;
- the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work;
- the employee is providing care to an "eligible person", including because of the closure of a school or daycare or similar facility;
- the employee is outside the province and cannot return to British Columbia because of travel or border restrictions.
The definition for "eligible person" includes, but is not limited to, children and adults unable to obtain basic needs for themselves and is under the employees care. The employee is entitled to unpaid leave for as long as one of these circumstances applies.
Further, in response to COVID-19, the Ontario government implemented a job-protection leave applicable when there is a government designated infectious disease by regulation: Employment Standards Amendment Act (Infectious Disease Emergencies). Similarly to BC, the leave is also unpaid and applies when certain personal circumstances are met such that the employee is unable to perform their work during the time the infection disease is ongoing.
Unpaid illness or injury leave
In accordance with the ESA, an employee is now entitled to up to three days of unpaid leave in each employment year for personal illness or injury after 90 consecutive days of employment. This is not COVID-19 specific nor is it a temporary job protection measure.
When an employee who regularly contributes to a benefit plan goes on unpaid leave, the employer must provide them with the opportunity to continue making benefits contributions. If the employee chooses to do so, the employer must maintain coverage under that plan. If the employee opts out of making contributions, the employer is not required to maintain coverage while the employee is on leave. But they must reinstate coverage once the employee returns to work and resumes their regular contributions.
Perhaps the most significant change that will flow from the ESA amendments will be a workplace culture shift. With additional job protection measures such as unpaid leaves, people who are sick may feel less need to "tough it out" and go to the workplace when they ought to stay home. And employers who are able to implement paid leave or more flexible work arrangements, such as working remotely when feeling sick, should consider amending their workplace policies and contribute positively to establishing a new normal.
While the stated objective of these amendments is to help protect jobs of private-sector employees and support employers facing economic hardship arising from COVID-19, such amendments can give rise to greater uncertainty for employers and employees as to their rights and responsibilities. This is especially so for employers operating in multiple jurisdictions. Employers are encouraged to regularly review applicable employment standards legislation as well as workplace policies and employment agreements. Failure to understand and meet obligations may result in undesired financial consequences.
The information contained in this article is current to July 7, 2020, but is subject to change. Should you have any questions please contact me for up to date information.