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On March 11, 2020, the World Health Organization declared the COVID-19 outbreak a pandemic. Government and public health officials are providing frequent updates, changing directives and making recommendations. We have received numerous inquiries from clients related to the outbreak.

The topics that come up most often are inevitably related to the following questions:

(1) Can an Employer send employees home – and do they have to pay them?

(2) What benefits are employees entitled to in the event of layoff, change in working hours or termination?

(3) Is potential exposure to the virus a basis to refuse work?

The answers to these questions will depend on the facts of each particular case and the employee’s employment contract, since some contracts will include employee rights and employer obligations relevant to these topics. The following information is not legal advice. The answers to these questions will vary, depending on the circumstances of each case. Consult legal counsel for information and advice relevant to your individual circumstances.

New Brunswick Context:  State of Emergency Order

In New Brunswick, the Emergency Measures Act (EMA) empowers the Minister of Public Safety to declare a state of emergency and to enact emergency measures.  Orders made under the EMA are binding.

On March 19, 2020, the Province of New Brunswick declared a State of Emergency and issued a Mandatory Order. The Mandatory Order contains several provisions that impact New Brunswick workplaces. A state of emergency declared under the EMA ends when it is terminated by the Minister of Public Safety or 14 days after the day on which it was declared. A state of emergency may be renewed after 14 days by the Minister with the approval of the Lieutenant-Governor in Council.

The Mandatory Order was renewed on March 26 and April 2, 2020.

Given the evolving nature of the outbreak, orders and recommendations will continue to change. Such orders and recommendations will shape the legal landscape in which employers operate.

(1) Can Employers Send Employees Home? – and Do They Have to Pay Them?

The simple answer is yes. Employers can send employees home. It could, however, be considered a layoff.

This raises further questions regarding the legal obligations of the Employer, including the Employer’s obligation to pay employees who are directed to stay home.

Of course, an employer policy that requires employees to leave work based on their ethnic or national origin is unreasonable and discriminatory under the Human Rights Act.

Sick Leave for Self-Quarantine

An employee who contracts COVID-19 should have access to any paid leave to which he or she may be entitled for any other illness that prevents him or her from going to work. The amount of sick leave the employee is entitled to will be governed by the employee’s employment contract.

Working From Home

The employer can permit or require employees to work from home where possible to reduce the health and safety risks associated with the spread of COVID-19 in the workplace. Employees working from home are entitled to the same remuneration that they would be entitled to if they were working from their office, provided they are working the same hours.

FAQ’s: Work From Home

The following list of questions, followed by their answers, can help employees determine what they may expect from their employers during the COVID-19 pandemic.

  1. Is the employee entitled to paid sick leave (i.e., are they actually sick)?

If the employee is sick, he or she should be entitled to sick leave as per his or her employment contract or any employer policies. Additionally, the Employment Standards Act entitles the employee to 5 days of unpaid sick leave per year if the employee has been employed by the employer for more than 90 days.

  1. If the employee is not sick, can the employee work from home?

If the contract of employment or an employer’s policy allows employees to work from home, an employee must confirm with the employer that he or she will work from home. The employer can permit or require employees to work from home where possible as this may reduce the health and safety risks associated with the spread of COVID-19 in the workplace. This allows employees who are in isolation or quarantine to contribute productively to the business and provides greater flexibility for employees who must care for family members in relation to the spread of COVID-19.

  1. If the employee is not sick and unable to work from home, are there other alternatives regarding leave that would apply, such as emergency leave or quarantine leave?

There may be alternatives in terms of paid and unpaid leave depending on the employment contract or any employer policies. If so, the employer and the employee should respect such agreements. At a minimum, the Employment Standards Act requires that the employer shall, upon the request of an employee, grant a leave of absence without pay of up to three days during a twelve calendar month period to meet responsibilities related to the health, care or education of a person in a close family relationship with the employee.

The New Brunswick government has also announced that it is also introducing amendments to provide job protection for workers who need to take a leave of absence because of the pandemic. This includes workers who have gotten sick, are caring for family members or people who have been instructed to self-isolate or quarantine. The amendments will provide unpaid leave of up to 15 weeks, without fear of losing their jobs. Further details on the amendments will follow once they are enacted.

(2) What Are Employees Entitled to if They are Laid Off For Reasons Related to COVID-19?

Entitlement to Employees Laid Off For Reasons Related to COVID-19

Given the uncertainty surrounding COVID-19, employers may opt to lay employees off temporarily. This can be characterised in a number of way, including employees being placed on a leave of absence without pay. COVID-19 is unprecedented in Canada and is unclear how these temporary layoffs will be dealt with by the courts. However, temporarily laid off employees should be aware that they may be entitled to allege constructive dismissal if they are not called back to their jobs in a reasonable amount of time after the situation improves.  Any employee who finds themselves in this situation may have a legitimate constructive dismissal claim against their Employer and should obtain legal advice.

The Canada Labour Code

The Canada Labour Code includes provisions for temporary layoffs due to a work shortage or the discontinuance of a work function. Section 235(2) of the Canada Labour Code states that layoffs constitute dismissals. A layoff is considered a termination of employment when the employer has no intention of recalling the employee to work. In these cases, employers have responsibilities and obligations to the employees usually associated with the termination of employment, and employees benefit from such defined rights as protection from unjust dismissal.

To avoid the layoff being categorized as a termination, the employer must ensure the layoff meets one of the definitions in section 30(1) of the Regulations. For details, please consult section 30 of the Canada Labour Standards Regulations or seek legal advice.

The COVID-19 Emergency Response Act         

The COVID-19 Emergency Response Act (COVID-19 Act) is federal legislation enacted in response to the COVID-19 pandemic. The COVID-19 Act implements various measures to “protect Canadians’ health and safety and stabilize the Canadian economy.” The COVID-19 Act received Royal Assent on March 25, 2020.

Amendments to the Canada Labour Code

Part 10 of the COVID-19 Act creates a regime for a leave related to COVID-19 under the Canada Labour Code. This regime is a temporary measure which remains in force until October 1, 2020. Following that date, it will be replaced by quarantine leave under the medical leave regime. The COVID-19 Act adds Division XIII.01 to the Canada Labour Code. Division XIII.01 outlines what the new leave is and how it works.

FAQ’s: Amendments to the Canada Labour Code

1. Who does the new leave apply to?

The new leave provisions under Canada Labour Code apply to employees in federally regulated workplaces.

2. What is leave related to COVID-19?

Section 239.01(1) provides that every federally-regulated employee who is “unable or unavailable to work for reasons related to COVID-19” is entitled to take a protected unpaid leave of absence. This leave of absence may be for a period of up to 16 weeks, or another number of weeks if fixed by regulation.

3. How does the leave work?

Requirements for Written Notice: An employee intending to take the COVID-19 leave, must, as soon as possible, provide written notice to their employer. The written notice must detail the reason for the leave and the length of the leave. It is not yet clear what qualifies as a “reason related to COVID-19.” However, given the broad language used in section 239.01(1), reasons would likely encompass a host of COVID-19 related issues, such as when an individual is required to self-isolate. If the length of COVID-19 leave changes, the employee must, as soon as possible, give written notice to their employer. Furthermore, an employer may require an employee to provide a written declaration in support of reasons for leave or change in length of COVID-19 leave.

Entitlement to Employment Opportunities: An employee is entitled, on written request, to be informed of every employment, promotion or training opportunity for which the employee is qualified that arises while the employee is on COVID-19 leave. The employer upon receiving such written request, must provide the information to the employee.

Protection from Reprisal: The Employer is prohibited from taking action against an employee for exercising or intending to exercise their entitlement to COVID-19 leave.

Prohibited actions include: dismissal suspension, layoff, demotion and discipline. Additionally, the employer cannot factor an employee’s intention to use or use of COVID-19 leave into decisions regarding promotion and training of the employee.

Exception: the Employer may reassign an employee if upon return from their COVID-19 leave of absence they are unable to do the work they performed prior to their absence.

Continuation of Benefits and Seniority: An employee’s pension, health and disability benefits and seniority continue during their COVID-19 leave, subject to the exceptions below. Where employees are required to make contributions to the benefits referred to above they have two options:

  • If they want to remain entitled to these benefits while on COVID-19 leave – they must pay those contributions within a reasonable time.
  • If they do not want to pay contributions while on COVID-19 leave, they must notify their employer of their intention to discontinue contributions. Notification should be at the start of the leave or within a reasonable time after.

Employers who pay contributions to the above benefits must continue to pay at least the same proportion as when the employee was not on COVID-19 leave.

Exception: the employer does not have to continue to pay contributions where an employee does not pay their contributions within a reasonable time. During the leave, employees should be aware that if contributions are not paid, pension, health and disability benefits do not accumulate.

Continuous Employment: For the purposes of calculating other benefits not referred to above, the employee’s work is deemed to be continuous with employment before the absence.

Vacation: An employee may interrupt their vacation to take COVID-19 leave. An employee may also postpone their vacation until after the day their COVID-19 leave ends.

Parental Leave: Parental leave may be extended by COVID-19 Leave.

A brief note on certificates by medical practitioners: The COVID-19 Act also amends the Canada Labour Code by adding section 168.1. This amendment allows employees to take Compassionate Care Leave, Leave related to Critical Illness or Medical Leave without having to provide a certificate issued by health care practitioners. Section 168.1 will remain in force until September 30, 2020.

Government Assistance For Those Who Have Lost Their Jobs or Cannot Work

New Brunswick Benefits

The government of New Brunswick is offering a one-time Workers Emergency Income benefit of $900 that will be administered through the Red Cross. The benefit will help bridge the gap between when people lose their employment or close their business and when they receive federal benefits (described below).

Since Monday, March 30, 2020, applications for the New Brunswick Workers Emergency Income Benefit have been available online. Visit the site to apply.

Federal Benefits

1. Employment Insurance Benefits

Individuals who have been laid off or who have reduced hours and qualify for Employment Insurance Benefits can apply for Employment Insurance through Employment and Social Development Canada. The one-week mandatory waiting period for  individuals applying for the Employment Assistance Sickness Benefit has been waived. It is not yet clear whether the one-week mandatory waiting period for regular Employment Assistance benefits has been waived.

For further information, visit the site.

2. Canada Emergency Response Benefit

In response to COVID-19, the government of Canada has a new Canada Emergency Response Benefit to provide support to individuals facing unemployment or who are sick or quarantined during this time.

The Canada Emergency Response Benefit will provide a taxable benefit of $2,000 a month for up to 4 months to:

  • workers who must stop working due to COVID19 and do not have access to paid leave or other income support.
  • workers who are sick, quarantined, or taking care of someone who is sick with COVID-19.
  • working parents who must stay home without pay to care for children that are sick or need additional care because of school and daycare closures.
  • workers who still have their employment but are not being paid because there is currently not sufficient work and their employer has asked them not to come to work.
  • wage earners and self-employed individuals, including contract workers, who would not otherwise be eligible for Employment Insurance.

The Canada Emergency Response Benefit will be accessible through a secure web portal starting in early April. Applicants will also be able to apply via an automated telephone line or via a toll-free number.

3. Additional Financial Assistance

The government of Canada is providing additional financial support to individuals and families through an increased Canada Child Tax Benefit, a six month student loan deferral, an extended income tax filing deadline, and a one-time special payment through the Goods and Services Tax Credit. Canadian banks also have committed to work with their customers on a case-by-case basis to find solutions to help them manage hardships caused by COVID-19.

The details of these relief programs can be found here.

(3) Is potential exposure to the virus a basis to refuse work?

The Occupational Health and Safety Act (OHSA) entitles employees to refuse work if they have reasonable grounds for believing that the act is likely to endanger their health or safety or the health or safety of any other employee.”

Whether the employee has reasonable grounds for believing work is likely to endanger their health or safety or the health or safety of any other person will depend on their particular circumstances, including but not limited to:

  • whether there have been any suspected or confirmed cases of the virus at the workplace;
  • whether anyone in the workplace has travelled internationally within the previous 14 days;
  • the employee’s age;
  • whether the employee has any underlying health conditions that makes them more vulnerable;
  • if the employee is pregnant or breastfeeding or lives with someone who is;
  • if the employer has provided equipment or imposed policies to protect the employee; and

whether the employee cares for someone who is particularly vulnerable due, for example, to age or underlying health conditions.

A general fear of contracting the virus within the workplace, without further reasons, is unreasonable. Nevertheless, the situation is dynamic and likely to change.

The OHSA provides a procedure whereby employees can exercise their right to refuse work. The process can be summarized as follows:

(1) Any employee who believes that an act is likely to endanger their, or any other employee’s, health or safety shall immediately report their concern to their supervisor, who shall promptly investigate the situation in the presence of the employee.

(2) Where an employee has made a report and the matter has not been resolved to their satisfaction, they shall refer the matter to a Joint Occupational Health and Safety Committee or, where there is no committee, to an Occupational Health and Safety officer.

(3) Where a matter has been referred to a Joint Occupational Health and Safety Committee and the matter is not resolved to the satisfaction of the employee, the employee shall refer the matter to an Occupational Health and Safety Officer.

(4)  Where a matter has been referred to an Occupational Health and Safety Officer and the matter is not resolved to the satisfaction of the employee, the matter may be appealed to the Chief Compliance Officer of the Workplace Health, Safety and Compensation Commission.

Employees should be aware that employers have the right to reassign them to other work during the period of their work refusal. Additionally, employees should be aware that they cannot continue their work refusal if the Chief Compliance Officer decides the member should return to work.

If an employee has concerns about workplace safety, even if the employee does not feel the need to refuse to perform the work, they should bring those concerns to their management, or joint occupational health and safety committee.

For further and more specific information on the right to refuse under the OHSA, we encourage employees to consult legal counsel.

FAQ’s: Refusal to Work

Refusal to work may be more complex in the context of a pandemic, particularly where specific directives have been imposed by the government. It is important to follow government directives regarding essential and non-essential services in accordance with the EMA.

Here are some answers to questions related to the refusal to work:

1. What is the difference between essential and non-essential services?

The cities and states technically determine whether or not the services are essential, but there are certain businesses that all communities have identified as essential. The federal government defines essential workers as “critical to preserving life, health and basic societal functioning.”

This includes, but isn’t limited to:

  • First responders
  • Health-care workers
  • Critical infrastructure workers
  • Hydro and natural gas workers
  • Workers who are essential to supplying society with critical goods, such as food and medicine

It is important to note that what is considered essential and non-essential is slightly different in each province and territory. Most jurisdictions also have legislation that allows officials to amend the list of what is considered non-essential, depending on the situation.

Non-essential businesses are generally recreational in nature. They don’t provide groceries, health or financial support, or utilities. Restaurants fall in this category, but most locations have allowed restaurants to continue to operate as long as they close dining rooms and switch to exclusively take-out and delivery.

These are the businesses largely agreed to be nonessential:

  • Theaters
  • Gyms and recreation centers
  • Salons and spas
  • Museums
  • Casinos and racetracks
  • Shopping malls
  • Bowling alleys
  • Sporting and concert venues

2. What happens if an employee assigned to an essential service refuses to work?

Occupational Health and Safety Acts in some provinces have specific legislative provisions which do not allow essential service workers, such as police, nurses, and firefighters, to refuse to work if they believe their health or safety is in danger. New Brunswick’s Occupational Health and Safety Act does not have such a provision.

In New Brunswick, an essential service worker who wished to refuse work on the basis of safety would be entitled go through the same process as any other employee in exercising their right to refuse to work. The determination of whether the employee was entitled to refuse work would ultimately be made by the Joint Occupational Health and Safety Committee or by the Chief Compliance Officer of the Workplace Health, Safety, and Compensation Commission.

Employers cannot dismiss, discipline, or intimidate employees for properly exercising a health and safety right.

Final Note

The COVID-19 pandemic is an ongoing and developing situation. New information and new issues will likely arise in the coming days and weeks.

For further information, contact us at (506) 458-1989, toll-free at 1-888-280-2777, or [email protected].

* This information is not legal advice.  The answers to these questions will vary, depending on the circumstances of each case. Consult legal counsel for information and advice relevant to your individual circumstances.