Proposed Amendment to the ESA: COVID-19 Job Protected Leave

On March 16, 2020, the Ontario government announced it is introducing legislation that, if passed, would amend the Employment Standards Act, 2000 (“ESA”), to add an unpaid job protected leave for employees impacted by COVID-19. The amendment would be retro-active to January 25, 2020.

The leave would apply to employees who are unable to work because:   

  • They are under medical investigation, supervision or treatment for COVID-19;
  • They are acting in accordance with an order under the Health Protection and Promotion Act;
  • They are in isolation or quarantine;
  • They are acting in accordance with public health information or direction;
  • The employer directs them not to work; and
  • They need to provide care to a person for a reason related to COVID-19, such as a school or day-care closure.

In order to avail oneself of this leave, a medical note would not need to be produced to the employer.

At this time, many aspects are unclear. For example, it has yet to be determined:

  • what the impact will be of the amendment being retroactive for employers who have terminated employees after January 25, 2020 that would have qualified for the new leave;
  • if “directs an employee not to work” includes directing an employee not to work because the employee needs to self-isolate or if it would allow the employer to direct an employee not to work for a number of other COVID-19 related reasons, such as the employer’s business closing or having a shortage of work;
  • how this amendment would impact the temporary layoff provisions under the ESA, without the layoff amounting to termination; and,
  • if this amendment would involve a reinstatement provision that is similar to the other job protected leaves under the ESA.

Federal Government Announces Support for Canadians and Canadian Businesses

Prime Minister Trudeau announced yesterday that the Federal government will provide several supports for Canadians and Canadian businesses in light of COVID-19 pandemic. Some of the supports are proposals requiring Royal Assent, expected to be implemented in April while others are immediately implemented, with supporting legislation to follow. Of particular note are the following:

10% Wage Subsidy for Small Canadian Businesses – Implementation “Immediately, Supporting Legislation to Follow”

  • Provides eligible small employers with a temporary wage subsidy for a period of three months
  • 10% of remuneration paid during that period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer
  • Eligible employers can benefit immediately from this support by reducing their remittances of income tax withheld on their employees’ remuneration
  • Eligibility: employers who can benefit “include corporations eligible for the small business deduction, as well as non-profit organizations and charities.”

Emergency Care Benefits – Implementation Anticipated for Early April (requires Royal Assent)

  • Provides up to $900 bi-weekly, for up to 15 weeks
  • Administered through the CRA
  • Eligibility:
    • Workers, including the self-employed, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits
      • Live during his announcement, PM Trudeau stated that those in self-isolation are included
    • Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent, but do not quality for EI sickness benefits
    • Parents with children who require care or supervision due to school closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not
  • The application requires Canadians to attest that they meet the eligibility requirements. They will need to re-attest every two weeks to reconfirm their eligibility
  • Apply through:
    • CRA MyAccount;
    • My Service Canada Account; or
    • by calling a toll free number with an automated application process (not yet released to the public)

Emergency Support Benefits – Implementation Anticipated for Early April (requires Royal Assent)                        

  • The Federal government will provide up to $5 billion to people who lose their jobs or face reduced hours as a result of COVID’s impact and who are not eligible for EI
    • amount per person not yet disclosed
  • Delivered through the CRA
  • Application presumed to be through the same method as the Emergency Care Benefits application process

It has yet to be outlined whether an employer topping up these benefits for employees would impact an employee’s eligibility for the benefit.

Despite the rapid changes and uncertainty, there are a number of strategies to minimize your legal exposure and maximize on the new and proposed benefits. The lawyers at Heeney Vokey LLP can help you and your business tackle the ongoing crisis. Please contact us if you have any questions, and keep an eye out for updates from us on the current situation.