March 25, 2020

Author: Matthew Bobawsky and Shale Anderson.

Please note that government responses to address the COVID-19 pandemic are changing rapidly.  This post is current as of March 25, 2020. Please contact a member of the Carbert Waite Employment Law Group if you have questions or require updated information.

In response to the outbreak of the COVID-19 virus, or novel coronavirus, both provincial and federal governments have amended workplace legislation with a goal of assisting businesses and Canadians vulnerable to layoffs and sickness.

Here’s what you need to know.

Am I able to keep my job if I have to quarantine or self-isolate because of COVID-19?

On March 17, 2020, by Order-in-Council 064/2020, Alberta enacted the Employment Standards (COVID-19 Leave) Regulation. The COVID-19 Regulation creates a 14-day protected leave for employees who are required to self-isolate or care for a child or dependent adult who is required to self-isolate. This leave is unpaid and does not require the employee to have been employed by the same employer for a period of at least 90 days. It also does not require the employee to provide proof in the form of a medical note. As the outbreak of COVID-19 progresses, Alberta may extend the 14-day protected leave if Alberta’s Chief Medical Officer recommends that it is necessary to do so.

The 14-day protected leave for employees who are required to self-isolate is not the only protected leave available to employees. Section 53.97 of the Employment Standards Code also allows employees who have worked for the same employer for at least 90 days to take a 16-week unpaid leave due to illness, injury, or quarantine. This 16-week protected leave requires the employee to provide the employer a medical note before starting the leave “unless the employee is unable to do so”, and provide the employer written notice “as soon as is reasonable and practicable in the circumstances.”

What happens if I lose my job or stop getting hours due to the COVID-19 outbreak?

The Government of Canada established the Canada Emergency Response Benefit (CERB) on March 25, 2020. This taxable benefit will provide $2,000 a month for up to four months for workers who lose their income as a result of the COVID-19 pandemic.  The CERB is intended to be a simpler and more accessible combination of the previously announced Emergency Care Benefit and Emergency Support Benefit provided under EI.

Canadians who are already receiving EI regular and sickness benefits as of March 25, 2020 will continue to receive their benefits and should not apply to the CERB. If their EI benefits end before October 3, 2020, they could apply for the CERB once their EI benefits cease, if they are unable to return to work due to COVID-19. Canadians who have already applied for EI and whose application has not yet been processed will not need to reapply. Canadians who are eligible for EI regular and sickness benefits will still be able to access their normal EI benefits, if still unemployed, after the 16-week period covered by the CERB.

Am I able to apply for Employment Insurance benefits if I quarantine or self-isolate?

Employment Insurance sickness benefits are available to employees who are unable to work because of illness, injury, or quarantine and that includes employees on a 14-day protected leave due to self-isolation. This benefit provides income replacement to employees for up to 15 weeks of income. The Government of Canada waived the one-week waiting period that usually applies to employment insurance benefits so that employees can be paid for their first week of unemployment. The Government of Canada also waived the requirement that employees provide a medical certificate.

The Government of Canada also introduced the Emergency Care Benefit. The Emergency Care Benefit is aimed at employees, and those who are self-employed, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits. This benefit includes those who are taking care of a family member who is sick with COVID-19 or have children who require care or supervision due to school closures. The Emergency Care Benefit provides up to $900 bi-weekly, for up to 15 weeks, but will not be available until April 2020.

If you are out of work and are not quarantined, sick, or caring for family members or children, then Employment Insurance benefits may be available to you. The primary criteria examined in an EI application are whether the applicant:

• Was or is employed in insurable employment;
• had a reduction in earnings of 40% or more, or complete job loss;
• has worked for the required number of insurable employment hours in the last 52 weeks or since the start of your last EI claim, whichever is shorter;
• are ready, willing, and capable of working each day.

Unlike the EI sickness benefit for those who are quarantined, sick, or caring for family members or children, the regular EI benefit still has a one-week waiting period as of the time of writing.

As of posting this article, no announcements have been made addressing whether an employee who has been laid off, terminated, or who has claimed the Emergency Care Benefit or EI Sickness Benefit will face reduced eligibility to receive EI Parental Leave or EI Maternity Leave benefits. 

Am I able to participate in work-sharing with my employer?

Under a Work-Share agreement, a group of employees works a reduced schedule, sharing in the work available. The benefit of a Work-Share agreement is that employees receive EI benefits while also receiving a portion of their regular earnings.

Work-Sharing is a program designed by the Government of Canada to help employers avoid layoffs when there is a temporary reduction in the normal level of business activity and the temporary work reduction is beyond the control of the employer. The Work-Sharing program allows employees to work a reduced work week and receive Employment Insurance benefits during the temporary reduction in normal levels of business. 

The Government of Canada enacted temporary special measures for employers affected by the downturn in business due to COVID-19. These temporary special measures extended the duration of Work-Sharing agreements from a maximum of 38 weeks to 76 weeks, and waived the waiting period so that employers with recently expired Work-Sharing agreements may apply for a new agreement without any delay. It also expanded the industry sectors eligible for the program to include any business experiencing a downturn in business activity related to the pandemic.

Both employers and employees have eligibility criteria for Work-Sharing agreements.

Employers must:

• have been in business in Canada year-round for at least two years;
• be a private business, a publicly-held company, or a not-for-profit organization;
• demonstrate that the shortage of work is temporary and beyond their control, and it not a cyclical/recurring slowdown;
• demonstrate a recent decrease in business activity of approximately 10%; and
• submit and implement a recovery plan designed to return the Work-Sharing unit(s) to normal working hours by the end of the Work-Sharing agreement.

Employees must:

• be a year round permanent full-time or part-time employee who is required to carry out the everyday functions or normal business;
• be eligible to receive Employment Insurance benefits; and
• agree to a reduction of their normal working hours in order to share the available work.

Can my employer require me to use vacation because of COVID-19?

Yes, under the Employment Standards Code an employer can require that an employee use their vacation time.  The employer is required to give at least two weeks’ notice of the vacation unless the employee agrees otherwise.

What other benefits are available if I am collecting EI, CERB, or working reduced hours?

The federal government is providing other benefits to individuals that include:

• GST credit top-up: a one-time payment to be made in early May of $400 for single individuals or $600 for couples.
• Canada Child Benefit top-up: a one-time payment, also in early May, of $300 per child.

If I lose my job because of COVID-19, can my employer top-up my EI payments?

Employers may qualify to register for a Supplemental Unemployment Benefit Program that would allow them to top up EI benefits.  Once a registered plan is put in place, and employer can provide a supplemental amount to top-up EI benefits received due to temporary stoppage of work, illness, or quarantine.  These top-up benefits will not impact EI received if paid under a registered plan.  

If your employment contract or a workplace policy states that you will receive such top-up payments, then you should confirm that the payments are being properly received. If top-up payments are not part of your employer’s compensation plan, then participation in the plan is optional for the employer.

What programs can my employer use to keep me working?

The Government of Canada has announced they will cover up to 10% of an employer’s remuneration costs for three months as a wage subsidy. The measure will be available to small businesses, including corporations who are eligible for the small business deduction, non-profit organizations, and charities. 

This subsidy will operate by allowing an employer to calculate 10% of an employee’s remuneration paid over three months and reduce the amount of the income tax remittances by that amount, up to a maximum of $1,375 per employee, and up to $25,000 in total.  It is hoped that this program will allow small businesses to continue providing work to employees by reducing business expenses. If you work for a small business, you can inquire whether your employer is using this benefit.

Our lawyers will continue to monitor announcements from both levels of government about changes in workplace legislation. If you would like more information about protected leaves, employment insurance benefits, Work-Sharing agreements, or wage subsidy, please contact a member of the Carbert Waite Employment Law Group.