In response to COVID-19, the federal government and the provinces have introduced various measures to mitigate the financial impact across the country. One of these measures is the introduction of a new type of type of unpaid, job-protected leave related to COVID-19.
As of the date of this bulletin, BC, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island, Newfoundland, and the federal government have introduced these new leaves.[1] This bulletin sets out the issues that pension and benefit plans and participating employers should be aware of in respect of these new leaves. It also summarizes the important aspects of these new COVID-19 leaves by province.
We will update this page as new legislation is introduced, so please check back for the latest developments.
New Unpaid, Job-Protected Leaves related to COVID-19
- British Columbia - On March 23, 2020, British Columbia added a new category of unpaid leave to the Employment Standards Act (BC) - the COVID-19 related leave.[2]
- Alberta - On March 17, 2020, Alberta also introduced a new unpaid leave related to COVID-19.[3] On April 6, 2020, Alberta introduced a “caregiver leave” to broaden the scope of its COVID-19 leave.[4] On June 17, 2020, Alberta introduced the “family leave,” which is similar to the “caregiver leave,” and will take effect after the “caregiver leave” lapses on August 14, 2020. The “family leave” will expire on August 14, 2021.[5]
- Saskatchewan - On March 17, 2020, Saskatchewan introduced a new “public health emergency leave”. This leave is available if (a) a public health emergency has been declared by the World Health Organization and the chief medical health officer has also issued specific orders relating to the public health emergency or (b) if the chief medical health officer has issued an order declaring that a disease present in Saskatchewan is harmful to the public health and individuals in Saskatchewan must take measures to prevent or reduce the spread of the disease.[6]
- Manitoba – On April 15, 2020, Manitoba amended the Employment Standards Code (Manitoba) to provide for a new public health emergency leave.[7] On October 28, 2020, Manitoba expanded the eligibility requirements for its public health emergency leave.
- Ontario - On March 19, 2020, Ontario amended the emergency leave provisions in the Employment Standards Act (Ontario) to provide for new leaves relating to infectious diseases and declared emergencies (e.g. COVID-19).[8] On May 29, 2020, Ontario introduced new measures to create a deemed infectious disease emergency leave (the “Deemed Leave”) for workers whose hours are temporarily reduced or eliminated by employers for reasons related to COVID-19.[9] On December 17, 2020, Ontario extended the Deemed Leave period.[10]
- New Brunswick – On April 17, 2020, New Brunswick amended the Employment Standards Act (New Brunswick) to provide for new “emergency leave” provisions. Under these new provisions, New Brunswick introduced the COVID-19 emergency leave by regulation on April 23, 2020.[11]
- Prince Edward Island – on June 18, 2020, Prince Edward Island amended the Employment Standards Act (Prince Edward Island) to create an emergency leave of absence.[12]
- Newfoundland – On March 26, 2020, Newfoundland amended the Labour Standards Act (Newfoundland) to create a new “communicable disease emergency leave.”[13]
- Federal - On March 25, 2020, the federal government amended the Canada Labour Code to create a COVID-19 leave.[14] On October 2, 2020, the federal government passed legislation amending the reasons for which COVID-19 leave can be taken, and the length of the COVID-19 leave. Any period of leave taken by an employee before the new legislation came into force does not count toward the new leaves. On March 15, 2021, the federal government again extended the length of the COVID-19 leave.
Considerations for Pension and Benefit Plan Administrators and Participating Employers
- Are employers required to continue to make contributions to pension and benefit plans while an employee is on a COVID-19 leave?
British Columbia – Like any other leave under Part 6 of the Employment Standards Act (BC) (such as maternity leave or jury duty), if an employee is on a COVID-19 leave, the employer must continue to make contributions to pension and benefit plans as though the employee is not on leave. If the employee normally makes contributions to the plan and chooses to continue to do so during the leave, then the employer must also continue the employer contributions.
Alberta - Alberta employers are generally not required to continue contributions to benefit plans during unpaid job-protected leave. There is no exemption from this rule for COVID-19 leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans.
Saskatchewan - In Saskatchewan, an employee continues to participate in benefit plans[15] while on leave if the employee continues to pay the contributions required by the benefit plan. In the case of a public health emergency leave, the Saskatchewan Employment Act specifically provides that employees are entitled to be paid their regular wages and benefits if the employee is (1) authorized by his/her employer to work at home during the public health emergency and (2) complies with the measures set out by the chief medical health officer, and any other order by the government relating to the public health emergency.
Manitoba – In Manitoba, the Employment Standards Code does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new public health emergency leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans. However, since employment is deemed to be continuous, the employee’s years of service will include the period of leave.
Ontario - In Ontario, during any leave, including an emergency or infectious disease leave, the employee continues to participate in pension, life insurance, extended health, dental, accidental death plans, and any other prescribed plans unless the employee elects in writing not to do so. During such a leave, an employer must continue to make the employer’s contributions for any of the above plans unless the employee gives written notice that they do not intend to pay their contributions, if any. If an employee on Deemed Leave has stopped participating in a benefit plan as of May 29, 2020, he or she is exempt from benefit continuation requirements during the Deemed Leave period. Similarly, if an employer of an employee who is on Deemed Leave has stopped making contributions to a benefit plan as of May 29, 2020, the employer is exempt from benefit continuation requirements during the Deemed Leave period.
New Brunswick – In New Brunswick, the Employment Standards Act does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new COVID-19 emergency leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans. However, since employment is deemed to be continuous, the employee’s years of service will include the period of leave.
Prince Edward Island – An employer is not required to continue to make contributions to the employee’s pension or other benefit plans during the new emergency leave. Whether or not contributions are required during the emergency leave will depend on the specific terms of the employers’ plans.
Newfoundland – In Newfoundland, the Labour Standards Act does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new communicable disease leave. The Labour Standards Act states that unless otherwise agreed upon by the employer and employee, a communicable disease leave does not count towards the application of the rights, benefits, and privileges under the statute. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans.
Federal - The pension, health, and disability benefits of the employee continue to accumulate during the entire period of the leave. Employers must continue to pay any contributions related to these benefits during COVID-19 leave unless the employee does not pay the employee’s contributions.
- Are changes required to your pension and benefit plan documents?
Pension and benefit plan documents often make reference to different types of leaves that employees may take. For instance, pension plans often define the types of leaves that will count toward pensionable service. In some cases, a plan might list the specific types of leave (i.e. maternity leave, parental leave, jury duty).
Plan administrators should consider reviewing their plan documents in respect of their description and treatment of statutory leaves of absence, such as the new COVID-19 leaves. Amendments may be needed to ensure that all applicable leaves, including the new COVID-19 leaves, are dealt with in a manner that is compliant with the applicable employment standards legislation.
Summary of COVID-19 Leaves Across Canada
|
| BC | AB | SK | MB | ON | NB | PEI | NL | FEDERAL |
| Effective date of new leave provisions | January 27, 2020 | Quarantine Leave: March 5, 2020 Caregiver Leave: March 17, 2020 Family Leave: August 15, 2020 | March 6, 2020 | March 1, 2020 | Infectious Disease Leave: January 25, 2020
| March 12, 2020 | March 16, 2020 | March 14, 2020 | October 2, 2020 |
| Eligibility Requirements | Employee is:
Diagnosed with COVID-19;
In quarantine or self-isolation in accordance with public health guidelines;
Directed by employer not to work due to the employer’s concern about the employee’s exposure to others;
Providing care to their child or their parent who needs care due to illness, disability or another reason, including providing care child due to school or daycare closure; or
Outside BC and cannot return to BC due to travel or border restrictions. | Employee is:
Under quarantine as a result of COVID-19, which includes self-isolation and self-quarantine, as may be recommended or directed by the chief medical officer (“Quarantine Leave") Caring for their child due to school or daycare closures or another family member under quarantine due to COVID-19 (“Caregiver Leave”) Has family responsibilities in relation to a family member who is under quarantine as a result of COVID-19 or a child who is unable to attend school or child care services as a result of any recommendations or directions by the Chief Medical Office with respect to COVID-19 (“Family Leave”). | Employee is:
Directed to self-isolate by their employer, a medical practitioner, the government of Saskatchewan, or the chief medical health officer; or
Caring for or supporting a child or family member who is affected by an order of the Government of Saskatchewan or an order by the chief medical health officer. | In relation to COVID-19, employee is unable to perform their work because: Employee is under medical investigation, supervision, or treatment; Employee is more susceptible to COVID-19 (e.g. due to an underlying medical condition); Employee is required to quarantine or self-isolate per guidance or directives issued by public health authorities; Employer has directed employee not to work due to concerns about the employee’s exposure to others; Employee is providing care or support to a family member, including due to closure of school or child care services; Employee is directly affected by travel restrictions and cannot travel to workplace; or Employee is subject to an order made under The Public Health Act; or is acting in accordance with an order made under The Emergency Measures Act. | Infectious Disease Leave: Employee is: Under medical investigation, supervision or treatment related to the designated infectious disease (e.g. COVID-19); Complying with an order under the Health Protection and Promotion Act that relates to the designated infectious disease; In quarantine or subject to a control measure such as self-isolation; Under a direction from their employer in response to a concern that the employee may expose other individuals in the workplace to the designated infectious disease; Providing care or support to a family member because of a matter related to the designated infectious disease, including school or day care closures; or Unable to travel back to Ontario due to travel restrictions related to the designated infectious disease. Deemed Leave An employee who is not performing his/her duties as a result of having his/her hours temporarily reduced or eliminated by employer for reasons related to COVID-19 is deemed to be on an infectious disease leave during the Deemed Leave period | Employee is: Under medical investigation, supervision or treatment related to COVID-19; Acting in accordance with an order under the Public Health Act related to COVID-19; In quarantine or isolation or subject to a control measure related to COVID-19, which includes self-isolation; Under a direction from their employer in response to employer’s concern of employee’s exposure to others; Providing care or support to a family member because of a COVID-19 related matter, including school or daycare closures; Directly affected by travel restrictions related to COVID-19, and cannot return to New Brunswick | Employee is: In isolation or quarantine, or subject to a control measure implemented by the Chief Public Health Officer related to a prescribed communicable disease (e.g. COVID-19); Under a direction from their employer in response to a concern that the employee may expose others in the workplace to the communicable disease; Out of the province and directly affected by a travel restriction related to the communicable disease and cannot reasonably return | Employee is:
Complying with an order under the Public Health Protection and Promotion Act that relates to the designated communicable disease;
| Employee is unable to work because:
|
| Duration of Leave | Employees entitled to the leave for as long as the eligibility circumstances apply to them | Quarantine Leave: 14 consecutive days, or longer if recommended by the chief medical officer Family Leave: for as long as necessary to meet the employee’s family responsibilities | Employees entitled to the leave as long as the public health emergency orders are in force | Employees entitled to the leave as long as the eligibility circumstances apply to them | Employees entitled to the leave until the emergency is terminated or as long as the disease continues to be designated an infectious disease
| The leave will end on the earliest of the following: (a) the date agreed on by employee and employer (b) the date on which the purpose for taking the leave no longer exists, or (c) the date on which the COVID-19 regulation is repealed | The leave continues as long as the emergency continues and prevents the employee from performing their work duties. | Employees are entitled to the leave as long as they are unable to work for the reasons above and the disease continues to be designated a communicable disease | COVID-19 Related Leave: 4 weeks
|
| Notice to Employer | Employee must request COVID-19 leave | Requirement to give written notice to employer of date of intended return does not apply to Quarantine Leave. Family Leave: employee must give employer as much notice as is reasonable and practicable in the circumstances | Requirement to give four weeks’ written notice to employer of commencement date of leave and date of intended return does not apply | Employee must advise employer that he/she will be taking leave | Employee must advise employer that he/she will be taking leave
| Employee must notify employer in writing as soon as possible of his/her intention to take leave, the anticipated commencement date, and the duration of the leave.
| Employee must give employer as much notice as reasonably possible of employee’s intention to take an emergency leave. If the employee was required to take leave before notice can be given, the employee must advise the employer as soon as possible after the leave begins. | None | Employee must provide written notice stating reasons for the leave and the intended length of leave. Employee must also give written notice to employer of any change of length of leave taken |
| Medical certificate required | Not required | Not required | Not required | Not required | Not required | Not required | Not required | Not required | Not required |
| Other Information required | Employer may request reasonably sufficient proof that the employee is entitled to COVID-19 leave | Employer may ask for reasonable proof of eligibility for Caregiver Leave, Family Leave | None | Employer may ask for reasonable verification of the necessity of the leave | Employer may require reasonable evidence that the employee is entitled to the leave | None | Employer may request reasonable evidence that the employee is entitled to the leave | Employer may request reasonable evidence that employee is entitled to the leave | Employer may require written declaration of reasons for taking leave |
| Pension & benefit contributions | Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions) | Employers not required to continue contributions (same as for other unpaid job-protected leaves) | Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions) | Employers not required to continue contributions (same as for other unpaid job-protected leaves)
| Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions) Employees on Deemed Leave (and their employers) do not have to continue benefit participation/contribution during the Deemed Leave period if they have stopped participating/contributing as of May 29, 2020 | Employers not required to continue contributions (same as for other unpaid job-protected leaves)
| Employers not required to continue contributions for emergency leave Employer contributions will depend on the terms of the plan text | Employers not required to continue contributions (same as for other unpaid job-protected leaves)
| Contributions must continue to be paid by employer (unless in a shared-cost plan, the employee chooses not to make their contributions) |
| Other | None | Employees are exempt from the requirement to be employed by the same employer for 90 days. | Employees are exempt from the requirement to be employed by employer for more than 13 consecutive weeks. | Employment is deemed to be continuous, so leave will be included in employees’ years of service. | None | Employment is deemed to be continuous, so leave will be included in employees’ years of service. An eligible employee who is terminated on or after March 12, 2020 is deemed to have been granted the emergency leave. | None | None |
If you have any questions about these new leaves of absence, or how to handle the impact of COVID-19 in pensions, please contact any member of the Lawson Lundell Pensions & Benefits Group.
NOTE: Due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, please understand that any blog posts written in the past may not reflect the current applicable obligations, rights and benefits of employers and employees.
[1] British Columbia - Bill 16, Employment Standards Amendment Act (No. 2) 2020; Alberta - Employment Standards (COVID-19 leave) Regulation, Alberta Reg. 29/2020; Saskatchewan - Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020; Manitoba - Bill 55, The Employment Standards Code Amendment Act; Ontario - Employment Standards Amendment Act (Infectious Disease Emergencies), 2020; Federal - Bill C-13, An Act respecting certain measures in response to COVID-19.
[2] Bill 16, Employment Standards Amendment Act (No. 2) 2020.
[3] Employment Standards (COVID-19 leave) Regulation, Alberta Reg. 29/2020.
[4] Alberta Ministerial Order 18/2020.
[5] Alberta Order in Council 181/2020.
[6] Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020, amending The Saskatchewan Employment Act.
[7] Bill 55, The Employment Standards Code Amendment Act.
[8] Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which amended the Ontario Employment Standards Act. Ontario also filed Ontario Regulation 66/20 on March 19, 2020 which designated COVID-19 as an infectious disease.
[9] Regulation 228/20, Infectious Disease Emergency Leave, filed under the Employment Standards Act (Ontario)
[10] Regulation 492/20: Infectious Disease Emergency Leave, filed under the Employment Standards Act (Ontario)
[11] Bill 40, An Act to amend the Employment Standards Act; Regulation 2020-29 under the Employment Standards Act
[12] Bill 38, An Act to amend the Employment Standards Act (No. 3)
[13] Bill 33, COVID-19 Pandemic Response Act. On March 27, 2020, Newfoundland filed Newfoundland and Labrador Regulation 22/20, which designated COVID-19 as a communicable disease.
[14] Bill C-13, An Act respecting certain measures in response to COVID-19.
[15] The Saskatchewan Employment Standards Regulation defines “benefit plan” as including a medical plan, a dental plan, a disability or life insurance plan, an RRSP, a pension plan, or an accidental death or dismemberment plan.
- Partner
Meghan is a partner in the firm’s Pension and Employee Benefits Group. She acts for boards of trustees and other sponsors of pension and benefit plans in the private and public sectors in British Columbia, Saskatchewan and Alberta.
About Us
Lawson Lundell's Pension and Employee Benefits Law Blog provides updates on the most recent legal developments impacting pension and employee benefit plans. We cover a range of topics, including recent case law and changes to relevant provincial and federal legislation.
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