Thank you to the Cox & Palmer Employment and Labour Group in Fredericton for providing the following summary of updates to the Employment Standards Act regarding obligations to grant leaves of absence as a result of COVID-19.
Updates to Employment Standards Act Emergency Leave
Yesterday, the Government of New Brunswick released the new COVID-19 Emergency Leave Regulations (the “Regulations”) that relate to the new Emergency Leave that was added to the Employment Standards Act last week. The Regulations clarify, among other things:
- who is eligible for the Emergency Leave;
- when employees can take an Emergency Leave;
- how an employee can apply for the Emergency Leave;
- if an employer can request a medical note from an employee if they apply for the Emergency Leave;
- how long the Emergency Leave can last; and
- what happens to employees who were suspended, laid off, dismissed, or otherwise terminated, prior to the introduction of the new Emergency Leave, as a result of COVID-19.
The Regulations also clarify that the Emergency Leave is an unpaid leave of absence.
Who is eligible?
According to the Regulations, an employer must grant an Emergency Leave to any of the following employees:
- Employees under medical investigation, supervision, or treatment related to COVID-19.
- An employee who is required to do any of the following, under section 33, 36 or 41 of the Public Health Act,as a result to COVID-19:
- take or refrain from taking any action directed by the Medical Officer of Health,
- submit to a medical examination; or
- receive medical treatment.
- An employee who is in quarantine or isolation or subject to another measure which was implemented in relation to COVID-19 and was issued by:
- a medical officer of health,
- a medical practitioner,
- a nurse practitioner,
- a nurse,
- the provincial or federal government ,
- a department or agency of the provincial or federal government, or
- a council of local government.
- An employee under a direction given by the employer in response to the employer’s concern that the employee may expose other individuals in the workplace to COVID-19.
- An employee providing care or support to an individual with whom the employee shares a close family relationship because of a matter related to COVID-19, including school or childcare facility closures.
- An employee who is directly affected by travel restrictions related to COVID-19 and cannot be reasonably expected to travel back to New Brunswick under the circumstances.
When can employees take this leave?
The eligibility for an Emergency Leave is retroactive to March 12, 2020. This means that eligible employees who were suspended, laid off, dismissed, or otherwise terminated on or after March 12, 2020 can be deemed to be on an Emergency Leave.
What does an employee need to provide?
Employers must grant an Emergency Leave to eligible employees that apply to the employer for such a leave. An employee is required to notify their employer in writing as soon as possible of:
- their intention to take an Emergency Leave;
- the anticipated commencement date of their leave; and
- the anticipated duration of the leave.
A notice must include the purpose for which the leave is taken, including a reference to the specific eligibility criteria.
Can employers request medical proof that the employee is unable to work due to COVID-19?
No. An employer cannot request a note from a medical practitioner that states that the employee cannot work due to COVID-19.
How long can the leave last?
The leave will end either on a date which the employer and employee agree or the date on which the purpose for taking the leave mentioned in the notice no longer exists, whichever occurs first. For example, if the Emergency Leave was in regards to a 14-day self isolation issued by a medical practitioner, the Emergency Leave would be for a 14-day period and would end when the self-isolation period ends.
What about employees who are currently suspended, laid off, dismissed, or otherwise terminated?
The Regulations provide that an employer who, on or after March 12, 2020, suspended, laid off, dismissed, or otherwise terminated an employee eligible to be granted an Emergency Leave is deemed to have granted the employee an Emergency Leave. In other words, employees suspended, laid off, or dismissed on or after March 12, 2020 who would otherwise have been eligible for the Emergency Leave, are deemed to be on an Emergency Leave.