Last week, we provided a number of options available to employers regarding steps they may need to take as a result of COVID-19. It is also important for you to be aware of the various leave options available to support employees, as applicable, during this time. We have summarized these options below.
Organizations differ in what they can and do offer to employees and, depending on your workplace, some of the available options may be as follows:
- Paid sick time in accordance with your sick leave policy
- Vacation – Some employees may want to use their accrued vacation prior to layoff, in order to keep their income as uninterrupted as possible. If this is an option for your business, keep in mind that employees would not be able to receive EI benefits while on vacation. As an employer, you also have a right to direct employees to take their vacation prior to laying them off
Leaves Protected by Legislation (ESA, CLC & Human Rights)
It is important to understand that, like any other illness or disability, COVID-19 (whether illness or quarantine as a result of exposure) is a disability like any other. As such, there are a few leaves under the applicable legislation that would apply. Under the Employment Standards Act of BC (ESA) and the Canada Labour Code (CLC), the following job-protected leaves would apply:
- Medical Leave under the CLC – Employees may take up to 17 weeks of unpaid Medical Leave, which is applicable to any illness (physical or mental), injury or medical condition
- Sick Leave &/or Leave for Other Forms of Disability under the ESA BC – There is no stated amount of time that the ESA BC indicates job protection for; however, circumstances are not black and white here, and Human Rights legislation requires that employers support employees with unpaid leave to the point of undue hardship (which could, for example, be mental health issues related to the pandemic)
- Family Responsibility (ESA)/Personal (CLC) Leave – Employees may take up to 5 unpaid days in order to care for a child or immediate family member; under the CLC, the first 3 days of Personal Leave are paid after 3 months of employment
- Critical Illness Leave – Under the ESA, employees may take up to 36 weeks to care for a child and up to 16 weeks to care for a family member whose health has been impacted as a result of illness and their life may be at risk; this leave is the same for the CLC, except that they may take 1 week more in each case
Keep in mind that there are slight differences to the above and varying types of leaves amongst provinces. For example, the Employment Standards Act of Alberta has recently provided a provision for employees to take 14 days of job-protected leave if they must self-isolate or care for a dependent who is required to self-isolate (and no medical note is required). While this has not been specifically outlined under the ESA in BC, no employee in Canada may be disciplined or terminated as a result of taking this leave under current circumstances. As such, the leave is job-protected in all provinces.
In the case of sick and critical illness leave, Employment Insurance would apply for those who are eligible; however, at this point, the waiting period has only been waived for sick benefits.
Group Benefits Coverage through Short Term Disability (STD)
For organizations who have STD plans, STD may apply in certain circumstances, although employees will still need to provide medical evidence, and the applicable waiting period is in accordance with the organization’s contract. While organizational contracts differ and some may have specific clauses related to pandemic coverage, some carriers are taking such measures as:
- Waiving the waiting period for anyone who tests positive for COVID-19
- Putting protocol in place to ensure that it’s easier to provide medical evidence
At this point, STD coverage does not apply to anyone who is in quarantine or self-isolation (whether working or not), unless they are actually ill. Those who are in quarantine for any reason other than illness would apply for EI, if they are eligible.
While we hope this is not an option that needs to be utilized due to organizations not taking appropriate measures to keep their employees safe, it is important to mention. Anyone who falls ill as a direct result of exposure to COVID-19 in the workplace, or in the course of duties may be eligible for worker’s compensation (upon determination following an investigation).
Other Important Considerations
This is clearly an unprecedented time for organizations and individuals alike. As we are all moving so fast to keep up with the news and prepare our workplaces, it may be easy to forget about what’s going on for people from a mental wellness perspective. We know people are anxious and concerned on a number of levels and this is undoubtedly having an impact on them, whether exposed to COVID-19 or not. Some individuals who live alone and/or are more socially isolated are also being impacted in a significant way (which may, in turn, impact their safety). Keeping in mind confidentiality, we remind you to check in respectfully with anyone who you feel may be vulnerable – either to the virus or its indirect impacts. This is not only the compassionate and moral thing to do, but also a legal obligation (i.e. duty to inquire).