Williams HR Law LLP

THE FEDERAL GOVERNMENT HAS PASSED LEGISLATION TO CREATE NEW BENEFITS PROGRAMS AND EXPAND THE LEAVE RELATED TO COVID-19 UNDER THE CANADA LABOUR CODE

October 2, 2020

Following the federal throne speech, which laid out several employment-related promises for the Parliamentary term, the federal government enacted Bill C-4, An Act relating to certain measures in response to COVID-19 [Bill C-4], on October 2, 2020.

Most significantly, Bill C-4 enacts the new federal government benefits which were first announced by the government in late August to replace the Canada Emergency Response Benefit (“CERB”), which ends on October 3, 2020. Bill C-4 also extends and expands the Canada Labour Code [CLC]provisions relating to COVID-19 related leaves of absence.

New Recovery Benefits Programs

Bill C-4 enacts three new temporary recovery benefits programs for workers who remain unemployed or unable to work due to COVID-19 (collectively, the “Recovery Benefits”). The three new Recovery Benefits are:

  • the Canada Recovery Benefit (“CRB”);
  • the Canada Recovery Sickness Benefit (“CRSB”); and
  • the Canada Recovery Caregiving Benefit (“CRCB”).

Changes have been made since these programs were originally announced in late August, including an increase to the amount of the CRB.

There are certain requirements for eligibility that are common among the three Recovery Benefits. To receive benefits, applicants must be Canadian residents who, at a minimum:

  • are at least 15 years old and have a valid social insurance number;
  • earned at least $5,000 in 2019, 2020, or in the 12 months preceding the date of application; and
  • are not receiving benefits under certain provincial plans, the two other Recovery Benefits, or employment insurance (EI) during the period for which they are applying.

Canadians will be able to apply for these benefits through the Canada Revenue Agency for periods between September 27, 2020 and September 25, 2021.

The Canada Recovery Benefit

The CRB will provide a taxable benefit of $500 per week for up to 26 weeks to workers who are not eligible for EI and who still require income support.

Payments made under the CRB were previously promised to be $400 per week when the program was announced in August. This amount has now been raised to $500 per week to match the amount paid out under its predecessor program, the CERB.

The CRB will be available to Canadian residents who, in addition to meeting the common requirements for eligibility set out above:

  • are ineligible for EI;
  • are not employed or self-employed, or have experienced a drop in income of at least 50%, for reasons related to COVID-19;
  • are available for and have made efforts to find work, whether as an employee or in self-employment;
  • have not placed undue restrictions on their availability for work;
  • have not voluntarily ceased to work, unless it was reasonable to do so;
  • have not failed to return to work, unless it was reasonable to do so; and
  • have not declined a reasonable offer to work.

The Canada Recovery Sickness Benefit

The CRSB provides the ten days of paid COVID-19 related sick days that Prime Minister Trudeau first proposed in the spring. It will provide a taxable benefit of $500 per week for up to two weeks for workers who are sick or must self-isolate for reasons due to COVID-19.

The CRSB will be available to Canadian residents who, in addition to meeting the common requirements for eligibility set out above:

  • are unable to work for at least 50% of their scheduled work week for reasons related to COVID-19, including because they contracted or might have contracted COVID-19, have isolated themselves for reasons related to COVID-19, or have other sicknesses, underlying conditions, or are undergoing treatments that would make them more susceptible to COVID-19; and
  • have not been granted a paid leave of absence by their employer or been paid under a sickness benefit plan.

The Canada Recovery Caregiving Benefit

The CRCB will provide a taxable benefit of $500 per week for up to 26 weeks for eligible Canadians unable to work because of caregiving obligations. Where two or more people reside in the same household, only one person in the household may receive CRCB for any given period. Further, the maximum number of weeks that all persons in the same household can receive the CRCB collectively is 26 weeks.

The CRCB will be available to Canadian residents who, in addition to meeting the common requirements for eligibility set out above:

  • are acting as a caregiver for a child under the age of 12 or a family member who requires supervised care due to the closure of, unavailability of, or inability of that person to attend schools, day programs, or other facilities, or the unavailability of that person’s regular caregiver, for reasons related to COVID-19;
  • are unable to work for at least 50% of their scheduled work week because of their caregiving obligations for reasons related to COVID-19; and
  • have not been granted a paid leave of absence by their employer or been paid other care or support benefits.

New Protected Leaves of Absence under the Canada Labour Code

Bill C-4 also includes amendments to the CLC which replace the existing leave related to COVID-19 for federally regulated employees with a modified version of the leave with different eligibility criteria and corresponding maximum durations.

The original leave related to COVID-19 under s.239.01 of the CLC allowed federally regulated employees to take a leave of absence of up to 16 weeks “if the employee is unable or unavailable to work for reasons related” to COVID-19. This maximum duration was later increased to 28 weeks.

Under the Bill C-4 amendments to the CLC, the exceptionally broad eligibility criteria of the original leave related to COVID-19 have been replaced with two more specific sets of circumstances under which employees may take the leave. Depending upon which set of eligibility criteria an employee meets, the maximum length of the leave to which they are entitled vary. Under the amended leave, employees are entitled to a leave of absence of:

  • up to two weeks if the employee is unable to work because they contracted or might have contracted COVID-19, have isolated themselves for reasons related to COVID-19, or have other sicknesses, underlying conditions, or are undergoing treatments that would make them more susceptible to COVID-19; and
  • up to 26 weeks if the employee is unable to work because the employee must perform caregiving obligations for a child under the age of 12 or a family member who requires supervised care due to the closure of, unavailability of, or inability of that person to attend schools, day programs, or other facilities, or the unavailability of that person’s regular caregiver, for reasons due to COVID-19.

Notably, if an employee took a leave related to COVID-19 under s.239.01 of the CLC, as it read on September 30, 2020, then that period will not count towards the 26-week maximum for the amended leave related to COVID-19 in respect of caregiving obligations. Further, the aggregate amount of leave related to COVID-19 that can be taken by two or more employees residing in the same household because they are unable to work due to caregiving obligations will be capped at 26 weeks total.

Additionally, the bill empowers the government to make regulations temporarily suspending requirements for health certificates in respect of employee requests for medical breaks and various leaves under the CLC, and to provide for alternative requirements and conditions. The government is also empowered to pass regulations prescribing different maximum durations for the purposes of the amended leave related to COVID-19.

A related amendment to the COVID-19 Emergency Response Act ensures that employees may continue to take leaves related to COVID-19 until September 25, 2021.

Takeaways for Employers

Although the new Recovery Benefits provided for in Bill C-4 will impact employees more directly than employers, there are still significant implications for employers. In particular, employees who may be entitled to the new Recovery Benefits and who have exhausted their entitlement to the CERB and/or EI will likely be more reluctant to return to work if they can continue to be compensated at home. This may take the form of increased requests for job-protected leaves of absence, such as the Infectious Disease Emergency Leave under the Employment Standards Act, 2000 and the leave related to COVID-19 under the CLC. Moreover, employees who do not qualify for job-protected leaves may be more likely to request to remain off work as an accommodation for reasons related to disability, family status, or other protected grounds under human rights legislation. For example, employers may experience an increase in requests for accommodation with regard to family or childcare obligations (for more information, see our recent case study on family status accommodation), in hopes of receiving the new CRCB. Thus, the new Recovery Benefits may complicate employers’ return to work plans, much like the CERB did.

The new leave related to COVID-19 under the CLC may also contribute to staffing challenges for federally regulated employers. This is because federally regulated employees who have exhausted or nearly exhausted their 28-week entitlement to the original leave related to COVID-19 may be entitled to an additional 26 weeks of leave under the amended version of the leave to care for a child or family member.

Finally, from a workplace health and safety perspective, the CRSB will make it more financially feasible for employees to not attend work when they are sick, and thereby reduce the risk of COVID-19 outbreaks in workplaces. In conjunction with effective workplace policies on screening, sanitation, and social distancing, such as the one recently mandated by the Ontario government (see our blog post for more information), the leave will likely help mitigate the risk of businesses being required to shut down due to positive cases of COVID-19.

As always, we will monitor other COVID-19 related measures affecting employers, and post further updates as they become available to keep you In the Know.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.

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