In the onslaught of Coronavirus Disease 2019 (COVID-19), many employees are concerned about not being able or available to work due to health issues or family obligations.
We recently wrote about the new “Infectious Disease Emergencies” leave introduced for provincially-regulated employees in Ontario in response to the COVID-19 pandemic, but what about federally-regulated employees?
This week, the Government of Canada has fast-tracked laws in response to COVID-19. On March 25, 2020, the COVID-19 Emergency Response Act was passed, including amendments to the Canada Labour Code (the “Code”) which applies to employees working in federally regulated sectors (such as the banking, telecommunications, radio and broadcasting, marine shipping, airline, rail, and telecommunications industries and many First Nation activities).
In summary, the changes to the law relaxed the requirements for medical certificates for the next several months and created a new leave of absence in response to COVID-19.
Due to concerns about the over-burdened health care sector, public health and the impracticality of obtaining a doctor’s note in the midst of the COVID-19 crisis, an employee’s obligation to provide certificates supporting various existing leaves of absence from work have been temporarily waived.
Until September 30, 2020, entitled employees may take one of the following leaves, even without a doctor’s note:
- Compassionate Care Leave (which is up to 28 weeks to provide care or support to a family member who has a serious medical condition with a significant risk of death)
- Leave Related to Critical Illness (which is up to 17 weeks to care for a critically ill adult family member and up to 37 weeks to care for a critically ill child family member)
- Medical Leave (which is up to 17 weeks for an employee’s own personal illness or injury; organ or tissue donation; or medical appointments during working hours)
A new “Leave Related to COVID-19” was also created for up to 16 weeks (which may later be increased by regulation) if the employee is unable or unavailable to work for reasons related to COVID-19.
Notices and Declarations
Under the COVID-19 leave, employees are obliged to give written notice to the employer of the reasons for the leave and the length of the leave that they intend to take. Employees must also give written notice of the change in the length of the leave they intend to take, as soon as possible.
Employers may require employees to provide a written declaration in support of the reasons for the COVID-19 related leave and of any change in the length of that leave.
Employees are entitled, on written request, to be informed of every employment, promotion or training opportunity (for which they are qualified) that arises during the period when they are on COVID-19 leave. On receiving that request, the employer must provide the information to the employee.
Employees may wish to make the request to avoid missing out on any work opportunity as the workplace adapts to the challenges of COVID.
Protections for Employees
Employers are prohibited from dismissing, suspending, laying off, demoting or disciplining employees because of a leave related to COVID-19. Where an employee is unable to perform the work they performed prior to their leave, the employer may assign the employee to a different positions with different terms and conditions of employment.
Benefits and Vacation
Pension, health and disability benefits and the seniority of an employee continue to accumulate during COVID-19 leave, unless contributions are not made. Employers are required to continue make benefits contributions during the leave, unless an employee opts not to continue to pay their own portion of the contributions. Employee are required to pay their portion of benefits contributions, unless within a reasonable time of the start of the leave, the employee notifies the employer that the employee intends to discontinue contributions during the period.
The new provisions allow vacation to be interrupted to take COVID-19 Leave.
Employment Insurance Amendments
Employees taking any of the above leaves, including COVID-19 leave, should inquire about their eligibility for Employment Insurance (EI) benefits, such as sickness benefits or the new Canada Emergency Response Benefit (CERB).
New Quarantine Leave
On October 1, 2020, the above COVID-19 leave will be repealed and a new provision for “Quarantine” leave of up to 16 weeks, will be incorporated into the existing medical leave provisions.
Job Security and Redress
Employees should be aware that, despite the protections afforded to them by the Code, taking a COVID-19 leave or another leave under the Code, will not grant an employee immunity from dismissal or layoff. The prohibitions relating to COVID-19 leave and the broad reprisal protections of the Code are limited in scope and depend the particular set of circumstances. In any event, additional protections are in place for employees, who experience a breach of their human rights or unjust dismissal or wrongful dismissal.
For legal counsel about your employment rights and obligations as they relate to COVID-19, contact the team at Zubas + Associates Employment Lawyers at firstname.lastname@example.org or 416-539-5844.