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Provinces Amend Employment Standards Legislation Amidst COVID-19

There have been several developments across the country since our previous blog post (Keeping Cool: An Employer’s Guide to COVID-19 in the Workplace). On March 17, 2020, British Columbia declared a state of emergency. It is initially in effect for 14 days, but may be extended or rescinded as necessary. Other provincial governments across the country are taking similar steps. Saskatchewan and Ontario have also declared states of emergency, and other provinces and territories have declared public health emergencies.

The provincial responses to this pandemic have included some recent amendments to employment standards legislation. As a result of these amendments, employers are now obligated to provide eligible employees with a job-protected, unpaid leaves of absence due to illness and/or other issues associated with COVID-19. In this blog post, we summarize some of the recent developments in Alberta, Saskatchewan, Ontario and British Columbia.

Alberta

On March 17, 2020, the Alberta government announced the passing of the Employment Standards (COVID-19 Leave) Regulation, which is in force retroactively to March 5, 2020. Under this new regulation, employees will be eligible for up to 14 consecutive days of job-protected leave if they are under quarantine. The Alberta government website states that this includes where an employee is: (1) required to self-isolate; or (2) is caring for a child or dependent adult that is required to self-isolate. Employees will not be required to produce a medical note in support of their request for this leave, and they do not have to have worked for their employer for a 90 day period prior to requesting the leave (unlike the other protected leaves under the Alberta Employment Standards Code). Note that the length of the leave may increase if Alberta’s chief medical officer recommends a longer period of self-isolation.

Despite previous government announcements which suggested that this would be a paid leave, employers are not required to pay employees during this protected leave of absence. However, the employee may be eligible to receive a one-time payment of $1,146 in “emergency isolation support” if they must self-isolate and will not have another source of income while self-isolated. The Alberta government has explained that this payment is intended to bridge the gap until the recently announced federal emergency payments begin in April 2020 (details of these benefits are available here). The Alberta government is expected to provide more information next week on how individuals can apply for this payment.

Saskatchewan

On March 17, 2020, the Saskatchewan government announced changes to The Saskatchewan Employment Act, which will be in force retroactively to March 6, 2020 (viewable here). The amendments include the following:

  • removing the requirement of 13 consecutive weeks of employment with the employer prior to accessing sick leave;
  • removing the requirement to provide a doctor’s note or certificate; and
  • introducing a new unpaid public health emergency leave that can be accessed:
    • when the World Health Organization has determined that there is a public health emergency and the province’s chief medical health officer has also issued an order that measures be taken to reduce the spread of a disease; or
    • the province’s chief medical health officer has independently issued an order that measures be taken provincially to reduce the spread of a disease where it is believed there is sufficient risk of harm to citizens of the province. The orders would also be made public to ensure everyone is aware of the direction.
  • Employees will be entitled to a public health emergency leave if:
    • any of the following have directed employees to isolate themselves to prevent or reduce the spread of the disease that is the subject of the order:
      • the employer of the employees;
      • a duly qualified medical practitioner;
      • the Government of Saskatchewan;
      • the chief medical health officer; or
    • the employee is required to provide care and support to the employee’s child, or other family member, who is affected, by a direction or order of the Government of Saskatchewan or an order of the chief medical health officer.
  • If employees are authorized to work from home during this period, and they comply with the measures set out in any orders from the chief medical officer or otherwise in the Saskatchewan employment standards legislation, then they are entitled to be paid their regular wage and benefits.

Ontario

On March 19, 2020, the Ontario provincial government passed amendments to the Ontario Employment Standards Act, 2000. These changes are in force retroactively to January 25, 2020, which is the date that the first presumptive case of COVID-19 was confirmed in Ontario. The SARS Assistance and Recovery Strategy Act, 2003, is repealed as part of these legislative amendments. Like the Saskatchewan legislation, the amendments in Ontario are intended to address infectious disease emergencies generally, and are not COVID-19 specific (unlike the Alberta regulation described above).

Employees will be entitled to an unpaid leave of absence if they are unable to perform the duties of their position for reasons related to a designated infectious disease, including because:

  • of an emergency declared under the Emergency Management and Civil Protection Act and, (i) because of an order that applies to him or her made under the Emergency Management and Civil Protection Act, (ii) because of an order that applies to him or her made under the Health Protection and Promotion Act, (iii) because he or she is needed to provide care or assistance to an individual referred to a class of specified individuals; or (iv) because of other prescribed reasons;
  • the employee is under individual medical investigation, supervision or treatment related to the designated infectious disease;
  • the employee is acting in accordance with an order under the Health Protection and Promotion Act;
  • the employee is in isolation or quarantine in accordance with public health information or direction;
  • the employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;
  • the employee needs to provide care or support to a specified individual for a reason related to the designated infectious disease, such as a school or day-care closure; and/or
  • the employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.

An employee will be able to take infectious disease emergency leave to care for the following individuals:

  • the employee’s spouse;
  • A parent, step-parent or foster parent of the employee or the employee's spouse;
  • A child, step-child or foster child of the employee or the employee's spouse;
  • A child who is under legal guardianship of the employee or the employee's spouse;
  • A brother, step-brother, sister or step-sister of the employee;
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse;
  • A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
  • A son-in-law or daughter-in-law of the employee or the employee's spouse;
  • An uncle or aunt of the employee or the employee's spouse;
  • A nephew or niece of the employee or the employee's spouse;
  • The spouse of the employee's grandchild, uncle, aunt, nephew or niece; and
  • A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.

Employees do not have to provide a medical note if they need to take the leave of absence. However, an employer may require the employee to provide other evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances. While not in the legislation itself, the government has indicated that this could include requests like a note from the daycare or for evidence that the airline cancelled a flight, but not a medical note.

British Columbia

There have been no amendments to BC’s employment standards legislation since our last blog post. The government has announced that certain members are meeting on March 23, 2020 to amend the BC Employment Standards Act. As a result, we expect that the BC government will follow the lead of Alberta, Saskatchewan and Ontario and create a new job-protected unpaid leave for British Columbia employees. It is unclear whether it will involve a COVID-19 specific regulation (like Alberta), or whether it will amend the legislation generally to address public health emergencies (like Ontario and Saskatchewan).

If you have any questions about the above changes, or how to address any COVID-19 related matters in your workplace, please reach out to a member of the Lawson Lundell Labour, Employment and Human Rights 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.

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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