COVID-19 is having an unprecedented impact on workplaces across the country. In response to the pandemic and the disruption of workplaces, various governments have announced amendments to their respective employment standards legislation. As the majority of employers are governed by provincial legislation, this has forced many employers to try to track the amendments province by province. In an effort to make things easier for employers, this article provides a high-level summary of the amendments for each province. For federal employers such as banks, airlines and telecommunications companies please see our article on the amendments to the Canada Labour Code.

British Columbia

The British Columbia Employment Standards Act has been amended to add two new unpaid, job-protected leaves.

1. Three-day illness or injury leave; and
2. COVID-19 related leave.

Illness or Injury Leave

After 90 consecutive days of employment, employees are entitled to up to three days of unpaid leave per year for personal illness or injury. Employers can ask the employee to provide reasonable proof of their illness or injury.

This leave brings the British Columbia Employment Standards Act in line with the employment standards legislation of other jurisdictions.

COVID-19 Leave

Employees are entitled to an unpaid, job-protected leave if they are away from work for any of the following reasons:

• The employee has been diagnosed with COVID-19 and is following medical advice;
• The employee is in self isolation or quarantine pursuant to an order or guidelines from the BC CDC or the federal Public Health Agency;
• The employer sends the employee home out of concern for the employee’s exposure to others;
• The employee is providing care for an “eligible person” (child or dependent adult who is their child or former foster child for a reason related to COVID-19) due to the closure of a school, daycare or similar facility;
• The employee is outside of BC and cannot return because of travel or border restriction; or
• Other scenarios to be added by regulation, as deemed necessary.

This leave can be retroactive to January 27, 2020 and applies indefinitely for as long as the circumstances above continue.

Employers can request proof that the employee falls under one of the qualification categories. However, an employee cannot be required to provide a doctor’s note.

Alberta

The new Alberta Employment Standards (COVID-19) Regulation has created a 14-day, unpaid job-protected leave for all employees, regardless of length of service, who are:

• Required to self-isolate and self-quarantine as a result of COVID-19; or
• Sick, or caring for a chid or dependent adult who is sick with COVID-19.

Employers cannot request a doctor’s note for employees who take this leave.

On April 6, 2020 Alberta introduced further amendments to the Employment Standards Code. The following temporary amendments were made:

• The maximum time for a temporary layoff was increased from 60 days to 120 days, effective retroactively to any COVID-19-related leave from March 17, 2020 onward.
• A group termination notice for terminations of 50 or more employees is no longer required to be provided to employees and unions. However, a group termination notice must still be provided to the Minister of Labour and Immigration.
• 24 hours’ notice is no longer required for shift changes.
• Two weeks’ notice is no longer required to change work schedules under averaging agreements.
• Employees are entitled to leave for the period of time recommended or directed by the Chief Medical Officer to meet the employee’s responsibilities related to family members under quarantine, and childcare due to school and daycare closures.
  • Employees do not have to have worked for 90 days with the same employer to qualify for this leave.
  • Employers can request documentation reasonable in the circumstances but this cannot be a medical certificate.

Saskatchewan

The Saskatchewan Employment Act has been amended to create the Public Health Emergency Leave. The Public Health Emergency Leave provides employees with an unpaid, job-protected leave during a public health emergency¹ . Saskatchewan has also introduced regulations granting employers relief from the layoff provisions of The Saskatchewan Employment Act during a public emergency period.

Public Health Emergency Leave

All employees, regardless of their length of service, are entitled to a leave for the period of a public health emergency if:

• They have been directed to isolate themselves (including if an employer directs them to self-isolate); or
• They are required to provide care to a child or family member affected by a direction of the Government of Saskatchewan or the chief medical officer.

The Public Health Emergency Leave is retroactive to March 6, 2020 and is a paid leave if the employer permits the employee to work at home. Employers cannot request a doctor’s note for employees taking a Public Health Emergency Leave.

Further, the amendments to The Saskatchewan Employment Act eliminate the requirement of a doctor’s note if an employee is forced to take illness or injury leave as a result of a public health emergency.

Layoffs

During a public emergency period, employers are exempt from the termination notice and pay requirements with respect to layoffs that are for 12 weeks or less in a 16-week period. If the layoff extends beyond 12 weeks then the employment is deemed terminated and employers must provide termination pay in lieu of notice.

Ontario

The Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 adds an unpaid job protected Emergency Leave for employees. All employees are entitled to Emergency Leave if the employee will not be performing their duties for the following reasons:

• An order under the Emergency Management and Civil Protection Act requires the employer’s business to close, including if the business was deemed non-essential;
• Needing to provide care and assistance to certain family members, including as a result of school or daycare closures;
• The employee is under medical investigation, supervision or treatment for COVID-19;
• To comply with an order under the Health Protection and Promotion Act;
• The employee is in quarantine or isolation;
• The employer directed the employee not to come into work because the employee may expose other employees to an infectious disease; or
• The employee cannot return to Ontario due to travel restrictions.

Employees’ eligibility for Emergency Leave is retroactive to January 25, 2020. Employees can take Emergency leave for as long as they are not performing their duties for the reasons listed above. Employers cannot require medical documentation for emergency leave, but can require that employees provide evidence that is “reasonable in the circumstances”.

The Ontario government has extended construction hours to 24 hours for essential projects starting on or after April 7, 2020. The applicable noise bylaws will also be limited for essential construction projects.

In addition, the government has extended safety measures for essential workplaces by implementing the following measures:

• Redeploying more than 30 employment standards officers to help businesses understand and comply with health and safety requirements;
• Working with health and safety associations to deploy up to 30 specialists to support employers and workers in the field;
• Issuing health and safety guidance notes to support specific sectors;
• Doubling the capacity of Ontario's Health and Safety Call Centre from 25 to 50 phone lines; and
• Issuing a call to recently-retired inspectors who may be able and willing to return to their positions.

Nova Scotia

The Nova Scotia government has announced that an employer cannot require a doctor’s note if an employee must take a leave from work. Additionally, employers are prohibited from having gatherings with over 5 people.

Manitoba

The Manitoba government is implementing a temporary exception to employment standards regulations in order to give employers more time to recall employees who have been laid off as a result of COVID-19.

Under the exception, any period of layoff that occurs after March 1, 2020 will not be counted toward the 8-week limit for a layoff to be considered temporary.

The exception will only apply to employees who will be rehired after the COVID-19 crisis has subsided.

On April 14, 2020, the Manitoba government introduced additional a Public Health Emergency Leave for employees. The government amended the Employment Standards Code to allow employees to take an unlimited unpaid leave if they are unable to perform their work because of the following COVID-19-related reasons:

• The employee is under medical investigation, supervision or treatment;
• The employee is required to be in isolation or quarantine, or take any other control measure in accordance with information or directions related to COVID-19 by health professionals, health officers, Health Links–Info Santé, the Government of Manitoba or the Government of Canada, a municipal council or a board of health;
• The employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work,
• The employee must comply with an order made under The Emergency Measures Act or The Public Health Act;
• The employee must provide care or support to certain family members as a result of COVID-19, including but not limited to, school and daycare closures; or
• The employee is subject to travel restrictions and cannot reasonably be expected to travel to their workplace.

The leave will apply retroactively to any leave that started on or after March 1, 2020. Employer’s can ask for reasonable verification of the necessity of the leave, but they cannot request a certificate from a health professional or health officer.

Manitoba has also introduced a new administrative leave for healthcare staff required to self-isolate due to possible exposure to COVID-19. This administrative leave is for up to 14 days.

Newfoundland and Labrador

On March 26, 2020, Newfoundland amended the Labour Standards Act to introduce a Communicable Disease Emergency Leave. The unpaid leave is available to employees who cannot perform the duties of their position for any of the following reasons:

• The employee is under individual medical investigation, supervision or treatment related to a designated communicable disease;
• The employee is acting in accordance with a public health order related to a designated communicable disease;
• The employee is in isolation or quarantine implemented as a result of information or directions related to a designated communicable disease issued by the government of the province or its Chief Medical Officer of Health;
• The employee is under a direction given by their employer in response to a concern of the employer that the employee may expose other individuals in the workplace to a designated communicable disease;
• The employee is providing care or support to certain family members for a reason related to a designated communicable disease, including a school or childcare service closure; and/or
• The employee is directly affected by travel restrictions related to a designated communicable disease and, under the circumstances, cannot reasonably be expected to travel back to the province.

The leave will last as long as the employee is unable to work due to the above reasons. An employer may ask for reasonable evidence, but cannot require a medical note or certificate.

New Brunswick

On April 17, 2020, New Brunswick passed legislation to amend the Employment Standards Act. The amendment introduces an emergency leave for workers. The emergency leave is available if a state of emergency is declared in the province, a public welfare emergency is declared in the province, an order is made by the Governor in Council, or 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.

On April 23, 2020, New Brunswick introduced the COVID-19 Emergency Leave Regulation. The regulation states that an employer must provide an unpaid leave to the following employees: 

• Employees under medical investigation or treatment related to COVID-19;
• An employee acting in accordance with an order under the Public Health Act related to COVID-19;
• An employee who is in quarantine or isolation, or is subject to a control measure that was implemented as a result of information or directions related to COVID-19 issued or provided to the public, or to one or more individuals;
• An employee 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 COVID-19;
• An employee providing care or support to a family member because of a matter related to COVID-19 that concerns that individual, including school or early learning, and childcare facility closures; and
• An employee who is directly affected by travel restrictions related to COVID-19 and, under the circumstances, cannot be expected to travel back to New Brunswick.

Employees who intend to take an emergency leave must notify their employer in writing as soon as possible. Employers cannot request a medical certificate to support the leave.

The emergency leave will be effective retroactively to March 12, 2020, and will end at a time agreed to between the employer and employee, or when the reason for which the emergency leave was taken no longer exists.

Additionally, employers who, on or after March 12, 2020, suspended, laid off, dismissed or otherwise terminated an employee eligible for the emergency leave shall be deemed to have granted the employee an emergency leave.

The Employment Standards Act was also amended to clarify restrictions on terminating employees during leaves of absence. Previously, the Employment Standards Act prevented an employer from “dismissing, suspending or laying off” an employee during a leave, or for reasons arising from the leave alone. The amendment has added that an employer is additionally prohibited from terminating an employee during a leave or for reasons related to the leave.

Other Provinces

PEI and Québec have not amended their Employment Standards legislation to date.

1. A public health emergency has to be declared by the Chief Medical Officer.↩