COVID-19 Update: New leave related to COVID-19 under the Canada Labor Code

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On March 25, 2020, the Federal Government enacted Bill C-13, which establishes a job-protected leave for Federally regulated employees who are unable or unavailable to work for reasons related to the COVID-19 pandemic. This new leave is intended to be temporary and, accordingly, is currently only in effect until the end of day on September 30, 2020.

The requirements of the new “Leave Related to COVID-19” under Division XIII.01 of the Canada Labour Code (the “Code”) include the following:

  • The unpaid leave of absence is for a period of up to 16 weeks, and an only be taken if the employee is unable or unavailable to work for reasons related to COVID-19.
  • As soon as practical the employee must give written notice to their employer of: the reason for taking the leave of absence and the length of the intended leave; and, if/when applicable, any change in the length of the leave. An employer may ask the employee to provide “a written declaration in support” of the foregoing (s. 239.01(4)).
  • An employee is entitled to continued pension, health and disability benefits (the “Benefits”) and accrual of seniority during the leave related to COVID-19.
  • If the employee is required to pay a portion or all of the premiums in order to be entitled to receive Benefits, then the employee must either: (a) within a reasonable period of time, pay the contributions for the leave period; or (b) within a reasonable time, notify the employer of their intention to not make premium contributions during the leave. If an employee elects to not make their premium contributions, then: (i) the employer is not required to pay its share of the premiums, and (ii) Benefits do not accumulate during the leave.
  • An employee’s employment is deemed to be continuous for the purpose of calculating benefits, including for the purpose of the Benefits.
  • The employee may request in writing to be kept informed of “every employment, promotion or training opportunity that arises during the” employee’s leave related to COVID-19, and the employer must provide such information upon receipt of such request (s. 239.01(5)).
  • Employers are prohibited from retaliating against an employee who intends to, takes or has taken a leave related to COVID-19, nor can an employer take such leave into account when deciding on promotion or training opportunities.
  • Employers may assign an employee “to a different position, with different terms and conditions of employment” if, after taking the leave related to COVID-19, the employee “is unable to perform the work performed by the employee prior to the absence” (s. 239.01(7)).

In addition, Bill C-19 introduced new provisions related to existing leaves of absence under the Code, which are only in effect until the end of day on September 30, 2020. These include:

  • An employee may interrupt an annual vacation, compassionate care leave, critical illness leave, leave related to death or disappearance under the Code in order to take a leave related to COVID-19.
  • An employee may extend the duration of a parental leave under the Code by the number of weeks that the employee is on a leave related to COVID-19.
  • An employee is not required to produce: a certificate from a health care practitioner in order to be eligible for a compassionate care leave, critical illness leave, or medical leave under the Code; and written documentation citing the reason for and duration of a critical illness leave.

Finally, effective October 1, 2020, employees will be permitted to take a medical leave of absence under the Code for up to 16 weeks where the leave is for the purpose of quarantine. At present, this leave does not have a scheduled end date and may be an indefinite addition to the Code in light of recent experience.

These changes to the Code are intended to provide additional protections to employees during the COVID-19 pandemic. Employers should exercise caution when making decisions regarding the terms and conditions of employment for employees who have requested or are on a leave of absence related to COVID-19. Our National Labour & Employment Group is available to assist clients on a 24/7 basis. If you need assistance, please reach out to any member of our team whenever you need to.

Please also regularly check our COVID-19 Hub for updates and additional information and insights.

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