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Canada’s COVID-19 Update: More Provinces Enact Leave Laws

British Columbia’s COVID-19 Leave and New Permanent Illness and Injury Leave

On March 24, 2020, the British Columbia government made two changes to the BC Employment Standards Act to provide workers with unpaid, job-protected leave due to illness and injury.

With respect to COVID-19, the government has established an unpaid, job-protected leave for employees if they are 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; or

  • They are outside of BC and unable to return to work due to travel or border restrictions.”

Employers are prohibited from requiring a doctor’s note from employees for this leave.

“The COVID-19 leave is retroactive to January 27, 2020 . . . During this public health emergency, employees can take this job-protected leave for the reasons above as long as they need it, without putting their job at risk. Once it is no longer needed, the leave will be removed from the Employment Standards Act.”

The second change to the Employment Standards Act is a permanent amendment providing up to three days of unpaid, job-protected leave each year for employees who cannot work due to illness or injury. This permanent change brings BC in line with many other provinces in Canada.

Ontario Amends ESA to Provide Unpaid, Job-Protected Infectious Disease Leave

The Ontario legislature amended the Employment Standards Act, 2000 on March 19, 2020 to provide employees with an unpaid, job-protected leave of absence for reasons related to designated infectious diseases. COVID-19 is currently a designated infectious disease.

Employees are entitled to this leave if:

  • 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 section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease;

  • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means;

  • 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 is providing care or support to a specified individual (as defined in the legislation) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures; 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 employer may require an employee to provide evidence that is reasonable in the circumstances that the employee is entitled to leave, but shall not require an employee to provide a medical certificate.

Entitlement to the infectious disease emergency leave ends on the day that the emergency is terminated or disallowed.

Alberta Offers Job-Protected, Unpaid Leave for COVID-19

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 if:

  • The employee is required to self-isolate; or

  • The employee is caring for a child or a dependent adult that is required to self-isolate.

The leave may be extended based on the advice of Alberta’s chief medical officer.

Employees do not need to have worked for their employer for a minimum period of time in order to qualify, and employers cannot request a medical note as evidence of entitlement to the leave. This order is retroactive to March 5, 2020.

Pursuant to provincial rules, employees may request to take vacation or use their banked overtime to self-isolate, but employers are not required to grant the request. Similarly, employers can request that employees voluntarily use their vacation or banked overtime to self-isolate, but they cannot force employees to do so.

Saskatchewan Provides for Unpaid, Job-Protected Leave During Public Health Emergencies

The Saskatchewan legislature has amended The Saskatchewan Employment Act 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 are entitled to take an unpaid, job-protected leave if:

  • The employee has been directed to isolate him or herself on direction or order of his or her employer, a duly qualified medical practitioner, the Government of Saskatchewan, or the chief medical health officer ; or

  • The employee is required to provide care and support to a child family member who is affected by a direction or order from the Government of Saskatchewan or the chief medical health officer.

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.

This article contains information that is current to March 25, 2020. Please be advised that the legislation and medical advice around COVID-19 is rapidly changing and is being updated daily.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 88

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About this Author

Michael Comartin, Ogletree Deakins Law Firm, Labor and Employment Attorney
Associate

Michael is an associate in Ogletree Deakins’ Toronto office. His diverse practice spans all areas of employment law, labour law, wage and hours issues, human rights, accessibility, and employee benefits and executive compensation. Michael also has experience with class actions, appellate litigation, and general litigation, having practiced in commercial and public law litigation at a previous firm, with an emphasis on class actions, judicial review, and international litigation.

Michael has appeared before the Court of Appeal for Ontario, the...

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