On September 9, 2020, the Québec government announced the implementation of an employment protective measure for Quebec employees who will have to be absent from work due to COVID-19. According to the government, this new measure aims, in particular, to complete the protections already available under the Act respecting Labour Standards (hereinafter the "LSA") and to prevent employees who may be affected by COVID-19 from coming to their workplace out of fear of reprisals from their employer.
The new Order In Council number 943-2020 (available from the following link) contains the parameters of this new measure. An employer will now be prohibited from dismissing, suspending, transferring, discriminating against, retaliating against or otherwise penalizing an employee if the employee is absent from work for a period of up to 14 continuous days and the absence is due to the fact that the employee must self-isolate pursuant to guidance or an order issued by a public health authority.
The persons who will benefit from this new measure are the employees within the meaning of the LSA. As a reminder, the notion of employee contained in the LSA is defined as a person who works for an employer and who is entitled to a salary. This notion also includes the worker commonly referred to as a "dependent contractor", who is a party to a contract under which he or she:
- undertakes to perform specified work for a person within the scope and in accordance with the methods and means determined by that person;
- undertakes to furnish, for the carrying out of the contract, the material, equipment, raw materials or merchandise chosen by that person and to use them in the manner indicated by him or her; and
- keeps, as remuneration, the amount remaining to him or her from the sum he has received in conformity with the contract, after deducting the expenses entailed in the performance of that contract.
The protection granted for absences due to isolation in connection with COVID-19 is very broad and may also be invoked by employees referred to in Section 3 of the LSA, who are generally excluded from the benefits of this law.
As such, employers must be cognizant of this change prior to terminating an employee who is in isolation due to COVID-19.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.