Available Leaves of Absence
· An employee who is quarantining, self-isolating, or otherwise unable to work due to COVID-19 may take a number of leaves of absence. If eligible, multiple leaves can be taken consecutively for the same event.
· During leave, employees have the right to be free from penalty, the right to reinstatement and to continue to participate in benefit plans.
Keep in Mind:
· There is no carry-forward each year for any of the leaves.
· With very few expectations, all leaves are unpaid, however employees can access various EI benefits to supplement their income while on a leave of absence.
· It’s important to remember that all provisions in the ESA provide for the minimum protections and benefits for employees. If an employee’s employment contract provides for greater protections and benefits, the courts will view it as the preferred authority.
Under the Employment Standards Act, 2000, employees are always entitled to a number of different leaves, including:
· Sick Leave;
· Family Responsibility Leave;
· Family Medical Leave;
· Family Caregiver Leave; and
· Critical Illness Leave
However, in response to the COVID-19 pandemic, a new leave has been included: the Infectious Disease Emergency Leave.
Pursuant to the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, employees with COVID-19 illness, symptoms or those in quarantine are entitled to a new indefinite unpaid, job-protected leave called the Infectious Disease Emergency Leave. The leave also applies to individuals who must care and support other relatives or their children due to school closures
· The leave applies to all employees, whether they work full or part-time, students, temporary agency assignments or casual workers
· The leave is retroactive to January 25, 2020 and employees are entitled to take the leave for as long as they are not performing their usual duties due to the pandemic.
· Unlike other leaves of absence, the employer is NOT entitled to ask for a medical note
Federally Regulated Workers (Canada Labour Code)
· Personal Leave;
· Medical Leave;
· Compassionate Care Leave; and
· Leave related to Critical Illness
The Canada Labour Code has also been amended to provide for a new leave to address COVID-19: Leave Related to COVID-19. This leave provides for up to 16 unpaid weeks for employees unable or unavailable to work for reasons related to COVID-19. The same rights of reinstatement and continued benefits also apply under the Code.
Supports Available for Employees
If employees finds themselves unable to work due to COVID-19, whether due to reduced hours or wages, a layoff, termination, or leave of absence, there are a number of benefits that may be available to supplement their income.
1. EI Sickness Benefits
Provides up to 15 weeks of benefits for employees unable to work or whose weekly earnings have reduced by more than 40% due to COVID-19.
It is available to employees who became eligible for sickness benefits before March 15, 2020. Anyone who has applied but became eligible for EI after March 15, 2020, will be automatically enrolled in the Canadian Response Benefit (CERB). Anyone eligible who has not yet applied should apply for the CERB.
The maximum payout for EI sickness benefits is up to 55% of the employee’s earnings to a maximum of $573 per week.
To qualify you must:
· Be unable to work due to medical reasons, which include any COVID-19 related reasons;
· Have a decrease of more than 40% of your regular weekly earnings for at least one week; and
· Have accumulated at least 600 insurable employment hours in the 52 weeks before the start of your claim, or since the start of your last claim, whichever is
2. EI Regular Benefits
Employees who are unable to work at all due to COVID-19 can apply for EI regular benefits. The EI benefits are available to employees who became eligible for EI regular benefits before March 15, 2020. Anyone who has applied but became eligible for EI after March 15, 2020, will be automatically enrolled in the Canadian Response Benefit (CERB). Anyone eligible who has not yet applied should apply for the CERB.
To qualify you must:
- Have been employed in insurable employment;
- Lost your job through no fault of your own;
- Have been without work and pay for at least 7 consecutive days in the last 52 weeks;
- Have accumulated the required number of insurable hours in the last 52 weeks or since the start of your last EI claim (the required hours range between 420 and 700; if you are a resident of Toronto, the requirement is 700 hours)
- Are willing and capable to work; and
- Are actively looking for work
The maximum payout for EI sickness benefits is up to 55% of the employee’s earnings to a maximum of $573 per week for a period anywhere between 14 to 45 weeks, depending on the number of insurable hours you have worked and the unemployment rate were you reside (for example, in Toronto, if you have worked 700-734 insurable hours, you are entitled to 14 weeks of IE regular benefits; if you have worked 1,820+ hours, you are entitled to 36 weeks).
While individuals cannot receive more than one EI benefit in any given period, they can apply for more than one in order to extend the number of weeks of EI entitlement.
3. Canadian Emergency Response Benefit (CERB)
The Government of Canada has recently introduced the Canada Emergency Response Benefit for all workers who would otherwise not qualify for EI benefits but have experienced income disruptions due to COVID-19. The CERB provides a taxable benefit of up to $2,000 of support every 4 weeks for a maximum of 16 weeks. It is available for all workers that do not otherwise qualify for EI benefits. However, in an effort to streamline processes, all applications for individuals eligible for EI regular and sickness benefits due to COVID-19 will now be processed through the CERB. If an individual is already receiving EI benefits that end before October 3, 2020, they can then apply for the CERB if they continue to have COVID-related work disruptions.
While initially only available to those workers who had lost their entire income as a result of COVID-19, the Federal Government has since extended the benefit to workers who have earned less than $1,000 in income for 14 or more consecutive days within the 4-week period of submitting their claim ( and once submitted, workers are only eligible for subsequent benefits if they earned less than 1,000 of employment income for the entire 4-week benefit period).
To qualify you must:
- Be residing in Canada and at least 15 years old;
- Have stopped working due to COVID-related reasons;
- Not have quit your job voluntarily;
- Are not receiving EI benefits for the same period (or don’t qualify for EI benefits); and
- Have earned a minimum of $5,000 in employment income or self-employment income in the past 12 months prior to the application or in the 2019 calendar year (the income does not have to have been earned in Canada)
Individuals can apply through Service Canada or the Canada Revenue Agency, but are advised not to apply through both.
FOR MORE INFORMATION OR QUESTIONS
For more information and questions about your particular situation, please contact Davis Barristers. Use EMAIL LINK BELOW or call us at (647) 409-1321
Disclaimer: This information is intended to provide a cursory guide of employment rights and issues during the COVID-19 pandemic. It in no way is a substitute for legal advice nor is it intended to form a solicitor-client relationship.