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Canada: Exercising Sick Leave Laws in Provinces in the Wake of COVID-19
The Canada Labour Code and many provinces under their respective employment standards legislation provide up to a maximum of 17 weeks of job-protected medical and family responsibility leave. Any necessary quarantine during COVID-19 also falls under the medical leave regime.
Paid Sick Leave legislation under the Federal Law states that an employee who has been with a company for a minimum of 3 consecutive months is entitled to 17 weeks of unpaid sick leave. Employees working in a federally regulated workplace are entitled to up to 16 weeks of unpaid, job-protected leave if they are unable or unavailable to work due to COVID-19.
For example, employees may take this leave if they are:
- Being quarantined or required to self-isolate as a result of COVID-19;
- Being required to provide care to a family member as a result of COVID-19, or
- Otherwise unable to work for reasons related to COVID-19.
This leave is on a temporary basis and is not retroactive. On October 1, 2020, this leave will be repealed. Canadian employees that are quarantined can apply for EI sickness benefits as well.
Let’s take a look at the specific time offs applicable in certain provinces during COVID-19:
Long Term Illness or Injury Leave under the Employment Standard Code provides an employee who has been employed by the same employer for at least 90 days is entitled to a maximum of 16 weeks unpaid leave due to the illness, injury or quarantine of the employee.
Through an Order in Council on March 17, 2020, the Alberta government amended the Employment Standards Code to allow full-time and part-time employees to take up to 14 consecutive days of unpaid, job-protected leave for employees who are required to self-isolate or care for a loved one.
This does not affect the right of an employee to the entitlement of 16 weeks unpaid leave in a calendar year for illness or injury under section 53.97 of the Act.
On March 24, 2020, the British Columbia government added two new types of leave to the BC Employment Standards Act to provide workers with unpaid, job-protected leave due to illness and injury.
New Covid 19 Leave
An employee can take unpaid, job-protected leave related to COVID-19 if they’re unable to work for any of the following reasons:
- They have been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse.
- They are in quarantine or self-isolation and are acting in accordance with an order of the provincial health officer, an order made under the Quarantine Act (Canada), guidelines from the BC Centre for Disease Control or guidelines from the Public Health Agency of Canada.
- Their employer has directed them not to work due to concern about their exposure to others.
- They need to provide care to their minor child or a dependent adult who is their child or former foster child for a reason related to COVID-19, including a school, daycare or similar facility closure.
- They are outside of BC and unable to return to work due to travel or border restrictions.
New Personal Illness or Injury leave
To better support employees on an ongoing basis, the Employment Standards Act provides up to three days of unpaid, job-protected leave each year for employees covered by the Employment Standards Act who can’t work due to personal illness or injury.
The Employment Standards Act, 2000 (ESA) was recently amended to include an unpaid, job-protected infectious disease emergency leave. This new leave replaces the “Declared Emergencies” leave that was previously available under the ESA under Section 50.1.
The new legislation, titled the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, provides unpaid job-protected leave to employees who are in quarantine or who are required to self-isolate due to COVID-19. This leave is available to employees who are not performing the duties of their position for certain reasons related to COVID-19, including:
- Personal illness, quarantine or isolation in specified circumstances.
- Concern by the employer that the employee may expose other individuals in the workplace to COVID-19.
- To provide care or support to certain family members for a reason related to COVID-19, including school or daycare closures.
- Due to certain travel-related restrictions.
The Saskatchewan legislature has amended The Saskatchewan Employment Act to add a new leave called Public Health Emergency Leave to provide employees with unpaid, job-protected leaves of absence in the event of a public health emergency. Bill 207 received royal assent on March 17, 2020, but applies retroactively to March 6, 2020.
Employees will not be required to have a minimum length of service with the employer in order to qualify for this leave, and a doctor’s note does not need to be provided.
If employees are able to and authorized by their employer to work from home during their leave, they are entitled to their regular wages and benefits during that period.
The Current Employment Standard Act provides for:
- 5 days Sick Leave without pay if an employee is not able to perform work due to illness or injury.
- 27 weeks of unpaid Compassionate Leave for the employee’s family member who is suffering from a serious medical condition with a significant risk of death within 27 weeks of the request for leave.
- 37 weeks of unpaid Family Caregiver Leave for a critically ill child and 17 weeks of unpaid Family Caregiver leave for critically ill adults.
The Government of the Northwest Territories in response to COVID-19 has advised of the following:
- All Northwest Territories government employees will be able to access sick and/or special leave to deal with the impacts of COVID-19, if required, regardless of their current leave balances.
- All Northwest Territories government employees will continue to be paid through regular time or paid through a form of paid leave (e.g., special leave if caring for an ill dependent, providing childcare or self-isolating and sick leave if ill).
- Employees experiencing symptoms of cough, fever, or difficulty breathing, experiencing those symptoms and are awaiting test results, or have been diagnosed with COVID-19 will have access to sick leave with pay.
On March 26, 2020, Newfoundland and Labrador introduced an amendment to the Labour Standards Act, which governs most employment relationships in the province. This amendment has created an unpaid leave of absence for employees not performing duties for reasons related to a “designated communicable disease”.
The amendment is providing leave for workers affected by COVID-19 but is expected to remain in force in anticipation of potential future incidents of a disease outbreak.
Employees, who meet the following criteria, will be entitled to the leave if they will not be performing duties for the following reasons related to a “designated communicable disease” (i.e. COVID-19):
- The employee is under individual medical investigation, supervision or treatment related to COVID-19;
- The employee is acting in accordance with an order under the Public Health Protection and Promotion Act, in relation to COVID-19;
- The employee is in isolation or quarantine or is subject to a control measure, including self-isolation, and that measure was implemented as a result of information or directions related to COVID-19 issued to the public or directly to an individual by the Chief Medical Officer;
- The employee is under a direction by their employer in response to the employer’s concern that the employee may expose other employees to COVID-19;
- The employee is providing support to ill family members.
Recently major changes were announced with respect to sick leave benefits under the Employment Insurance (EI) legislation. EI sickness benefits provide up to 15 weeks of income replacement and are available to eligible claimants who are unable to work because of illness, injury or quarantine, to allow them time to restore their health and return to work.
Provinces like Nova Scotia, Manitoba, etc have not made any specific time off provisions relating to COVID-19 but employees can avail of the benefits under the respective employment standards legislation and the federal EI.