As it stands currently, two provincial governments have announced a form of statutory leave in response to COVID-19. It is likely that other provinces will follow suit. The details regarding these forms of leave are not definitively clear and are subject to change. We will continue to monitor the provisions that are ultimately put into place.
In addition to other statutory forms of leave, it is important for employers to remember that they are still subject to other forms of leave provided in an employment contract or workplace policies where applicable, such as paid sick days and personal leave of absence days. In some cases, a leave of absence for COVID-19 reasons may qualify for short-term disability coverage under a group or other insurance plan.
During a press conference on March 16, 2020, the Ontario provincial government announced that it will be bringing forth legislation to amend the Employment Standards Act, 2000 (the "ESA") to provide unpaid job protection for employees who are not able to work because they are:
- under medical investigation, supervision or treatment for COVID-19;
- acting in accordance with an order under the Health Protection and Promotion Act;
- in isolation or quarantine;
- acting in accordance with public health information or direction;
- directed not to work by the employer; or
- providing care to a person for a reason related to COVID-19 such as a school or day-care closure.
Employees will have a responsibility to advise their employer as soon as possible should they need to take this form of leave.
Once passed by the Legislative Assembly, the leave would be retroactive to January 25, 2020, which is the date the first presumptive case of COVID-19 was confirmed in Ontario. The Ontario Government advised there will not be a time limit for this leave, and also confirmed that the leave will not require employees to provide a medical note so that healthcare professionals are able to focus on treating those with identified health issues. Lastly, the Ontario Government confirmed that this will be an unpaid leave of absence, and they are working with the Federal Government to ensure that employees receive as much support as possible.
Employees subject to this leave of absence cannot be laid off or terminated under the ESA. Under a statutory leave of absence, the employer must continue benefits unless the employee elects in writing not to do so. The same consideration does not apply with a lay off.
Similarly, the Alberta Government announced on March 13, 2020 that eligible Alberta employees will be entitled to a two-week paid, job protected leave if they are required to self-isolate or are caring for an ill family member with COVID-19. At present, this will not apply to anyone who is laid off due to a business closure or anyone who has to stay home to care for their children as a result of a school or daycare closure.
Employees will not be required to present medical certificates, nor will the usual 90-day minimum employment requirement apply in order to be eligible for such leave.
Note that employees cannot be terminated while taking this job protected leave, which includes a prohibition against temporarily laying them off. In general, employees cannot be terminated or laid off while taking job protected leave under Alberta's Employment Standards Code. For some leaves under the Code, there is an exception to the general prohibition on laying off employees during leave if a business is shut down or required to suspend operations. In these situations, the Code permits employers to temporarily lay off employees. Employers are required to reinstate the employee in the same or comparable position with no loss of earnings. However, this exception does not apply to all leaves and at this time it is unclear whether this exception will apply to the 14-day paid job protected leave for COVID-19.
New regulations passed by the Alberta Government on March 17, 2020 confirm that the leave is unpaid. A such, employees may be eligible for employment insurance (EI) under the federal government's new Emergency Care Benefit.
Based on the current information available, employers will most likely not be required under the Code to continue benefits during this leave of absence, unless there is a contractual obligation to do so (either with an individual employee or under a collective agreement). We recommend that employers verify any possible coverage with their benefits insurer.
Recommending Application for Employment Insurance Benefits to Employees
Employers should recommend to employees in these situations that they may apply for EI benefits, but should not represent that employees will receive those benefits definitively as that determination is made by the EI program within defined criteria. In completing the Record of Employment, an employer should use code N00 for leave of absence as opposed to code A00 which applies to layoffs.
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