Amendments to the New Brunswick Employment Standards Act

On April 17, New Brunswick passed legislation to amend the Employment Standards Act to provide for emergency leave to protect workers’ jobs during states of emergency and public health threats.

An employer must grant an employee a leave of absence during the current state of emergency and any future states of emergency or threats to public health. The government may make regulations regarding matters such as:

• The eligibility requirements for emergency leaves,
• The purposes for which the leave may be taken, and
• Whether the leave may be taken as paid or unpaid.

Reasons for Leave

An employer shall grant an employee a leave of absence in any of the following circumstances: 

• When the Minister of Public Safety declares a state of emergency under the Emergency Measures Act in respect to all or any area of the Province;
• When the Governor in Council declares a public welfare emergency, a public order emergency, an international emergency or a war emergency under the Emergencies Act (Canada);
• When the Governor in Council makes an order under section 58 of the Quarantine Act (Canada) in any circumstance relating to a notifiable disease prescribed by regulation under the Public Health Act or declared to be a notifiable disease in an order of the Minister of Health or the chief medical officer of health, as the case may be, a notifiable event prescribed by regulation under the Public Health Act, or any other threat to public health.

Employees Duties

In order for an employee to take an emergency leave, they must meet the eligibility requirements prescribed by regulation. As the regulations have not yet been released, it is not clear at this time what will be required for an employee to take an emergency leave.

Employer’s Responsibilities

In effect, the amendments allow the government to make regulations that:

• Deem a suspension, layoff, dismissal, or termination of employment an emergency leave of absence,
• Determine on which date the leave of absence commenced, and
• Determine the duration of the leave.

The Act provides that the government can determine that a leave of absence was deemed to commence before the date on which the regulations come into force. This means that, with respect to any employees currently laid off, suspended, dismissed, or terminated for COVID-19-related reasons, the government could make regulations that deem those employees to be on a leave of absence, rather than laid off, suspended, or terminated.

The details with respect to the eligibility for emergency leave, the length of the leave, any documentation required to verify the leave, whether the leave will be paid or unpaid, and whether certain layoffs, suspensions, or terminations will be deemed to be emergency leaves will be established by regulation.