To support you in the management of your human resources and with the various issues you may encounter in the context of the COVID-19 pandemic, our labour and employment law group monitors the latest developments on a daily basis. This publication is an update of our March 13, 2020 bulletin, which you can access through the following link:https://bit.ly/3cYcymf.
Temporary special measures for the “Work-Sharing” program
This employment insurance program aims to avoid layoffs following a temporary reduction of normal business activities due to a situation that is beyond the employer’s control. This measure notably provides income support to employees who are eligible to receive employment insurance benefits, and whose weekly schedule is temporarily reduced while their employer recovers. This program is based on a three-party agreement involving the employer, the employees (and the union, if applicable), and Service Canada. Employees who are party to such an agreement must accept reducing their working hours and sharing the available work over a fixed period of time.
Among the various admissibility criteria, we note that a recent reduction of approximately 10% in business activities must be demonstrated.
In the context of the COVID-19 pandemic, temporary special measures, applicable from March 15, 2020 to March 14, 2021, have been put in place to support employers and employees who are affected by the slowdown of activities caused by the virus. Among other things, the maximum duration of work-sharing agreements has been doubled, going from 38 to 76 weeks. The mandatory waiting period between the termination of a work-sharing agreement and its renewal has also been lifted.
Employment insurance relief
The federal governmenthas recently announced an increased flexibility in the application of employment insurance rules allowing individuals who are in quarantine or have been directed to self-isolate to receive employment insurance sickness benefits without having to wait during a 7-day waiting period.
According to Service Canada, to receive employment insurance benefits from the first day of absence from work caused by thecoronavirus (COVID-19), it appears that a medical certificate will not be required in the following situations:
- If a quarantine is made compulsory by provincial legislation;
- If a quarantine is made compulsory by a public health agent;
- If a quarantine is made compulsory by an employer or other person in a position of authority;
- If someone in the family of the person applying for benefits is infected by the coronavirus (COVID-19).
We note, however, that a record of employment must be issued by the employer. Moreover, we suggest that the latter specify that the employee meets one of the four criteria listed above.Benefit claims which are related to quarantine and isolation measures will be processed in priority.
For the moment, the relief applied to the mandatory waiting period rule is not extended to other work interruptions occurring in the context of the COVID-19 pandemic, that is to say, to all other situations outside of the four situations listed above, for example a layoff caused by insufficient work stemming from the pandemic. In such cases, usual rules regarding layoffs remain applicable.
In the present context, the Canadian Medical Association (CMA) is asking employers to cease requesting medical certificates due to the unnecessary burden that such requirements place on the health care system. Employers should therefore use parsimony when making such requests to their employees, in light of applicable circumstances.
Layoff notices and payment of indemnities
The applicable rules for the issuance of layoff notices remain those which are provided under theAct respecting Labour Standards(ALS), or under part III of theCanada Labour Code(CLC)for federally regulated businesses.
Pursuant to the ALS, for any layoff of less than 6 months, an employer is not required to give written notice to its employees.
Pursuant to the CLC, in the case of a temporary layoff of less than 3 months, an employer is not required to apply the rules which usually govern layoffs, whether individual or collective (50 employees or more), and therefore not required to give layoff notices or to pay separation indemnities.
A record of employment must be remitted to the laid-off employee.
In addition to these rules, it is important to keep in mind the specific requirements of collective agreements, if applicable.
Financial assistance measures for businesses and employees
As part of a statement published under a “Q&A” format, the CNESST made its position known on March 16, 2020 on the issue of whether or not an employer must compensate an employee if the latter is asked to return home for voluntary isolation. The CNESST indicated that “if a salaried employee does not provide any work (by working remotely for example), the employer is under no obligation to compensate him” (unofficial translation). However, agreements providing for different terms may be entered into by the parties.
To compensate such a loss of income, the Quebec Government has announced, on March16, 2020, the establishment of aTemporary Aid for Workers Program(Programme d’aide temporaire aux travailleursorPATT) which aims to offer financial assistance to meet the needs of workers who cannot earn their full income and who are not eligible for another financial assistance program, because they are in isolation to counter the spread of the COVID-19 virus. To take advantage of the program, workers must first ensure that they are not eligible for another financial assistance program, whether offered by the government (e.g.: employment insurance) or by a private entity (e.g.: private insurance or collective insurance).
This financial assistance, which may represent up to 573$ per week, will be spread out over a period ranging from 14 days to one month.
At the time of publication of the present bulletin, the federal government is announcing that other measures concerning employees will be revealed over the next days. We will keep you appraised of developments in this respect.
In the context of the COVID-19 pandemic, we are your partners at every stage:
- Establishing or updating your contingency plan;
- Reviewing or drafting notices for your awareness campaign;
- Answering all your questions regarding legal issues, including issues of compensation and leaves, while assessing your internal policies and collective agreements;
- Taking part in your strategic discussions on theissues surrounding the current crisis.