We all know by now that the pandemic landscape is ever-changing. On October 1, 2020, changes were made (yet again) to the COVID-19 leave in the Canada Labour Code. The leave, which currently provides employees who are unable to work for COVID-19-related reasons in federally regulated workplaces, with up to 28 weeks of unpaid job protected leave will be replaced as discussed below.

COVID-19-related leave for sickness and recovery

Employees are entitled to up to two weeks of unpaid job protected leave if they:

  • have contracted or might have contracted COVID-19; 
  • have underlying conditions, are undergoing treatments or have contracted other sicknesses that, in the opinion of a medical/nurse practitioner, person in authority, government or public health authority, would make them more susceptible to COVID-19; or 
  • isolated themselves on the advice of their employer, a medical/nurse practitioner, person in authority, government or public health authority for reasons related to COVID-19. 

Canada Recovery Sickness Benefit

To complement  this leave period, the government of Canada has also created the Canada Recovery Sickness Benefit (CRSB), coming into force October 1, 2020, which provides a paid sick leave of $500 per week for up to two weeks. The CRSB will cover employees and self-employed persons unable to work for at least 50% of the time they would have otherwise worked in the week, because they:

  • contracted or might have contracted COVID-19; 
  • have underlying conditions, are undergoing treatments or have contracted other sicknesses that, in the opinion of a medical/nurse practitioner, person in authority, government or public health authority, would make them more susceptible to COVID-19; or
  • isolated themselves on the advice of their employer, a medical/nurse practitioner, person in authority, government or public health authority for reasons related to COVID-19.

Leave for care of child and family member

In addition to these two weeks, employees will also be permitted to up to 26 weeks of leave to care for a child under the age of 12 due to school closures or COVID-19-related reasons, or a family member requiring supervised care who cannot attend regular day care programs or facilities due to closures or other COVID-19-related reasons. 

The aggregate time taken under this COVID-19 leave per household must not exceed 26 weeks. In other words, if two or more employees reside in the same household, then the total number of weeks to which all employees are collectively entitled is 26, including for employees from the same household. The leave period may be divided into one or more periods. However, where one or more employees reside in the same household, only one of them can be on leave during any particular period. 

Lastly, any COVID-19-related leave taken as of September 30, 2020, will not count towards the new 26-week maximum. 

Take-aways

When preparing for what has been officially declared the “second wave” in some parts of the country, employers should recall that federally regulated employees are now entitled to: 

  • a job-protected COVID-19-related leave of up to two weeks for sickness and recovery, which is paid if the employee qualifies for the CRSB; and
  • a maximum of 26 weeks of unpaid job-protected leave to care for a child or family member. 

These changes replace the existing COVID-19 leave regime in the Code and come into force on October 1, 2020. Further, employers should note the leave periods discussed above may be varied or extended by future regulation. < /p>

As the number of COVID-19 cases and school closures continues to rise in many parts of Canada, employers should carefully consider how to properly organize their workforce, keeping in mind the possibility that employee job-protected leave requests may increase in the coming weeks and months.

Originally published by Norton Rose, October 2020

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