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New Employment Standards Leaves for COVID-19 & Their Impact on Pension & Benefit Plans
Posted in Pensions

In response to COVID-19, the federal government and the provinces have introduced various measures to mitigate the financial impact across the country. One of these measures is the introduction of a new type of type of unpaid, job-protected leave related to COVID-19.

As of the date of this bulletin, BC, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Newfoundland, and the federal government have introduced these new leaves.[1] This bulletin sets out the issues that pension and benefit plans and participating employers should be aware of in respect of these new leaves. It also summarizes the important aspects of these new COVID-19 leaves by province.

We will update this page as new legislation is introduced, so please check back for the latest developments.

New Unpaid, Job-Protected Leaves related to COVID-19

  • British Columbia - On March 23, 2020, British Columbia added a new category of unpaid leave to the Employment Standards Act (BC) - the COVID-19 related leave.[2]
  • Alberta - On March 17, 2020, Alberta also introduced a new unpaid leave related to COVID-19. [3] On April 6, 2020, Alberta introduced further changes to broaden the scope of its COVID-19 leave. [4]
  • Saskatchewan - On March 17, 2020, Saskatchewan introduced a new “public health emergency leave”. This leave is available if (a) a public health emergency has been declared by the World Health Organization and the chief medical health officer has also issued specific orders relating to the public health emergency or (b) if the chief medical health officer has issued an order declaring that a disease present in Saskatchewan is harmful to the public health and individuals in Saskatchewan must take measures to prevent or reduce the spread of the disease.[5]
  • Manitoba – On April 15, 2020, Manitoba amended the Employment Standards Code (Manitoba) to provide for a new public health emergency leave.[6]
  • Ontario - On March 19, 2020, Ontario amended the emergency leave provisions in the Employment Standards Act (Ontario) to provide for new leaves relating to infectious diseases and declared emergencies (e.g. COVID-19).[7] On May 29, 2020, Ontario introduced new measures to create a deemed infectious disease emergency leave (the “Deemed Leave”) for workers whose hours are temporarily reduced or eliminated by employers related to COVID-19.[8]
  • New Brunswick – On April 17, 2020, New Brunswick amended the Employment Standards Act (New Brunswick) to provide for new “emergency leave” provisions. Under these new provisions, New Brunswick introduced the COVID-19 emergency leave by regulation on April 23, 2020.[9]
  • Newfoundland – On March 26, 2020, Newfoundland amended the Labour Standards Act (Newfoundland) to create a new “communicable disease emergency leave.”[10]
  • Federal - On March 25, 2020, the federal government amended the Canada Labour Code to create a COVID-19 leave.[11]

Considerations for Pension and Benefit Plan Administrators and Participating Employers

Are employers required to continue to make contributions to pension and benefit plans while an employee is on a COVID-19 leave?

British Columbia Like any other leave under Part 6 of the Employment Standards Act (BC) (such as maternity leave or jury duty), if an employee is on a COVID-19 leave, the employer must continue to make contributions to pension and benefit plans as though the employee is not on leave. If the employee normally makes contributions to the plan and chooses to continue to do so during the leave, then the employer must also continue the employer contributions.

Alberta - Alberta employers are generally not required to continue contributions to benefit plans during unpaid job-protected leave. There is no exemption from this rule for COVID-19 leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans.

Saskatchewan - In Saskatchewan, an employee continues to participate in benefit plans[12] while on leave if the employee continues to pay the contributions required by the benefit plan. In the case of a public health emergency leave, the Saskatchewan Employment Act specifically provides that employees are entitled to be paid their regular wages and benefits if the employee is (1) authorized by his/her employer to work at home during the public health emergency and (2) complies with the measures set out by the chief medical health officer, and any other order by the government relating to the public health emergency.

Manitoba In Manitoba, the Employment Standards Code does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new public health emergency leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans. However, since employment is deemed to be continuous, the employee’s years of service will include the period of leave.

Ontario - In Ontario, during any leave, including an emergency or infectious disease leave, the employee continues to participate in pension, life insurance, extended health, dental, accidental death plans, and any other prescribed plans unless the employee elects in writing not to do so. During such a leave, an employer must continue to make the employer’s contributions for any of the above plans unless the employee gives written notice that they do not intend to pay their contributions, if any. If an employee on Deemed Leave has stopped participating in a benefit plan as of May 29, 2020, he or she is exempt from benefit continuation requirements during the Deemed Leave period. Similarly, if an employer of an employee who is on Deemed Leave has stopped making contributions to a benefit plan as of May 29, 2020, the employer is exempt from benefit continuation requirements during the Deemed Leave period.

New Brunswick In New Brunswick, the Employment Standards Act does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new COVID-19 emergency leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans. However, since employment is deemed to be continuous, the employee’s years of service will include the period of leave.

Newfoundland In Newfoundland, the Labour Standards Act does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new communicable disease leave. The Labour Standards Act states that unless otherwise agreed upon by the employer and employee, a communicable disease leave does not count towards the application of the rights, benefits, and privileges under the statute. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans.

Federal - The pension, health, and disability benefits of the employee continue to accumulate during the entire period of the leave. Employers must continue to pay any contributions related to these benefits during COVID-19 leave unless the employee does not pay the employee’s contributions. 

Are changes required to your pension and benefit plan documents?

Pension and benefit plan documents often make reference to different types of leaves that employees may take. For instance, pension plans often define the types of leaves that will count toward pensionable service. In some cases, a plan might list the specific types of leave (i.e. maternity leave, parental leave, jury duty).

Plan administrators should consider reviewing their plan documents in respect of their description and treatment of statutory leaves of absence, such as the new COVID-19 leaves. Amendments may be needed to ensure that all applicable leaves, including the new COVID-19 leaves, are dealt with in a manner that is compliant with the applicable employment standards legislation.

Summary of COVID-19 Leaves Across Canada

 

BC

AB

SK

MN

ON

NB

NL

FEDERAL

Effective date of new leave provisions

January 27, 2020

Quarantine Leave: March 5, 2020

Caregiver Leave: March 17, 2020

March 6, 2020

March 6, 2020

Infectious Disease Leave: January 25, 2020


Deemed Leave period: from March 1, 2020 to 6 weeks after termination of COVID-19 emergency declaration

March 12, 2020

March 14, 2020

March 25, 2020

Eligibility Requirements

Employee is:

  

- Diagnosed with COVID-19;

   

- In quarantine or self-isolation in accordance with public health guidelines;

  

- Directed by employer not to work due to the employer’s concern about the employee’s exposure to others;

  

- Providing care to their child or their parent who needs care due to illness, disability or another reason, including providing care child due to school or daycare closure; or

  

- Outside BC and cannot return to BC due to travel or border restrictions.

Employee is:

  

- Under quarantine as a result of COVID-19, which includes self-isolation and self-quarantine, as may be recommended or directed by the chief medical officer

- Caring for their child due to school or daycare closures or another family member under quarantine due to COVID-19 (“Caregiver Leave”)

Employee is:

  

- Directed to self-isolate by their employer, a medical practitioner, the government of Saskatchewan, or the chief medical health officer; or

  

- Caring for or supporting a child or family member who is affected by an order of the Government of Saskatchewan or an order by the chief medical health officer.

In relation to COVID-19, employee is unable to perform their work because:

- Employee is under medical investigation, supervision, or treatment;

- Employee is required to quarantine or self-isolate per guidance or directives issued by public health authorities;

- Employer has directed employee not to work due to concerns about the employee’s exposure to others;

- Employee is providing care or support to a family member, including due to closure of school or child care services;

- Employee is directly affected by travel restrictions and cannot travel to workplace; or

- Employee is subject to an order made under The Public Health Act; or is acting in accordance with an order made under The Emergency Measures Act.

Infectious Disease Leave:

Employee is:

- Under medical investigation, supervision or treatment related to the designated infectious disease (e.g. COVID-19);

- Complying with an order under the Health Protection and Promotion Act that relates to the designated infectious disease;

- In quarantine or subject to a control measure such as self-isolation;

- Under a direction from their employer in response to a concern that the employee may expose other individuals in the workplace to the designated infectious disease;

- Providing care or support to a family member because of a matter related to the designated infectious disease, including school or day care closures; or

- Unable to travel back to Ontario due to travel restrictions related to the designated infectious disease.

Deemed Leave

An employee who is not performing his/her duties as a result of having his/her hours temporarily reduced or eliminated by employer for reasons related to COVID-19 is deemed to be on an infectious disease leave during the Deemed Leave period 

Employee is:

- Under medical investigation, supervision or treatment related to COVID-19;

- Acting in accordance with an order under the Public Health Act related to COVID-19;

- In quarantine or isolation or subject to a control measure related to COVID-19, which includes self-isolation;

- Under a direction from their employer in response to employer’s concern of employee’s exposure to others;

- Providing care or support to a family member because of a COVID-19 related matter, including school or daycare closures;

- Directly affected by travel restrictions related to COVID-19, and cannot return to New Brunswick

Employee is:


- Under medical investigation, supervision or treatment related to the designated communicable disease (e.g. COVID-19);


- Complying with an order under the Public Health Protection and Promotion Act that relates to the designated communicable disease;


- In quarantine, isolation, or subject to another control measure such as self-isolation;


- Under a direction from their employer in response to employer’s concern that the employee may expose others in the workplace to the designated communicable disease;


- Providing care or support to a family member because of a matter related to the designated communicable disease, including school or day care closures; or


- Unable to travel back to the province due to travel restrictions related to the designated communicable disease.

Employee is:

  

- Unable to work for reasons related to COVID-19 (applies to employees who are employed in federally regulated employment)

Duration of Leave

Employees entitled to the leave for as long as the eligibility circumstances apply to them

Quarantine Leave: 14 consecutive days, or longer if recommended by the chief medical officer

Caregiver Leave: for the period of time recommended by the chief medical officer

Employees entitled to the leave as long as the public health emergency orders are in force

Employees entitled to the leave as long as the eligibility circumstances apply to them

Employees entitled to the leave until the emergency is terminated or as long as the disease continues to be designated an infectious disease


Employees are entitled to the Deemed Leave until 6 weeks after the COVID-19 declaration of emergency ends

The leave will end on the earliest of the following:

(a) the date agreed on by employee and employer

(b) the date on which the purpose for taking the leave no longer exists, or

(c) the date on which the COVID-19 regulation is repealed

Employees are entitled to the leave as long as they are unable to work for the reasons above and the disease continues to be designated a communicable disease

16 weeks

Notice to Employer

Employee must request COVID-19 leave

Requirement to give written notice to employer of date of intended return does not apply to Quarantine Leave

Requirement to give four weeks’ written notice to employer of commencement date of leave and date of intended return does not apply

Employee must advise employer that he/she will be taking leave

Employee must advise employer that he/she will be taking leave


No notice required for employees who are on the Deemed Leave

Employee must notify employer in writing as soon as possible of his/her intention to take leave, the anticipated commencement date, and the duration of the leave.


Employer must extend the emergency leave if employee provides further notice that he/she is still eligible for the leave.

None

Employee must provide written notice stating reasons for the leave and the intended length of leave.

Employee must also give written notice to employer of any change of length of leave taken

Medical certificate required

Not required

Not required

Not required

Not required

Not required

Not required

Not required

Not required

Other Information required

Employer may request reasonably sufficient proof that the employee is entitled to COVID-19 leave

Employer may ask for reasonable proof of eligibility for Caregiver Leave

None

Employer may ask for reasonable verification of the necessity of the leave

Employer may require reasonable evidence that the employee is entitled to the leave

None

Employer may request reasonable evidence that employee is entitled to the leave

Employer may require written declaration of reasons for taking leave

Pension & benefit contributions

Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions)

Employers not required to continue contributions (same as for other unpaid job-protected leaves)

Employer contributions will depend on the terms of the plan text

Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions)

Employers not required to continue contributions (same as for other unpaid job-protected leaves)


Employer contributions will depend on the terms of the plan text

Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions)

Employees on Deemed Leave (and their employers) do not have to continue benefit participation/contribution during the Deemed Leave period if they have stopped participating/contributing as of May 29, 2020

Employers not required to continue contributions (same as for other unpaid job-protected leaves)


Employer contributions will depend on the terms of the plan text

Employers not required to continue contributions (same as for other unpaid job-protected leaves)


Employer contributions will depend on the terms of the plan text

Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions)

Other

None

Employees are exempt from the requirement to be employed by the same employer for 90 days.

Employees are exempt from the requirement to be employed by employer for more than 13 consecutive weeks.

Employment is deemed to be continuous, so leave will be included in employees’ years of service.

None

Employment is deemed to be continuous, so leave will be included in employees’ years of service.

None

None

 

If you have any questions about these new leaves of absence, or how to handle the impact of COVID-19 in pensions, please contact any member of the Lawson Lundell Pensions & Benefits Group

NOTE: Due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, please understand that any blog posts written in the past may not reflect the current applicable obligations, rights and benefits of employers and employees.

[1] British Columbia - Bill 16, Employment Standards Amendment Act (No. 2) 2020; Alberta - Employment Standards (COVID-19 leave) Regulation, Alberta Reg. 29/2020; Saskatchewan - Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020; Ontario - Employment Standards Amendment Act (Infectious Disease Emergencies), 2020; Federal - Bill C-13, An Act respecting certain measures in response to COVID-19.

[2] Bill 16, Employment Standards Amendment Act (No. 2) 2020.

[3] Employment Standards (COVID-19 leave) Regulation, Alberta Reg. 29/2020.

[4] Alberta Ministerial Order 19/2020

[5] Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020, amending The Saskatchewan Employment Act.

[6] Bill 55, The Employment Standards Code Amendment Act.

[7] Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which amended the Ontario Employment Standards Act. Ontario also filed Ontario Regulation 66/20 on March 19, 2020 which designated COVID-19 as an infectious disease.

[8] Regulation 228/20, Infectious Disease Emergency Leave, filed under the Employment Standards Act (Ontario)

[9] Bill 40, An Act to amend the Employment Standards Act; Regulation 2020-29 under the Employment Standards Act

[10] Bill 33, COVID-19 Pandemic Response Act. On March 27, 2020, Newfoundland filed Newfoundland and Labrador Regulation 22/20, which designated COVID-19 as a communicable disease.

[11] Bill C-13, An Act respecting certain measures in response to COVID-19.

[12] The Saskatchewan Employment Standards Regulation defines “benefit plan” as including a medical plan, a dental plan, a disability or life insurance plan, an RRSP, a pension plan, or an accidental death or dismemberment plan.

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  • Sophia  Ma
    Associate

    Sophia Ma is an associate in Lawson Lundell’s Pensions and Employee Benefits Group. She works with senior legal counsel to advise plan sponsors and administrators on legal matters regarding pension and benefits plans. She also ...

  • Meghan  Popp
    Associate

    Meghan is an associate in the firm’s Pension and Employee Benefits Group. She acts for boards of trustees and other sponsors of pension and benefit plans in the private and public sectors in British Columbia, Saskatchewan and ...

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