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April 1, 2020

The novel coronavirus and the workplace: Considerations for employers

LAST UPDATED April 1, 2020

Rapidly evolving measures to counter the global COVID-19 pandemic continue to impact Manitoba employers and workplaces. Below are a number of important considerations to bear in mind regarding layoffs and Employment Insurance, the duty to accommodate, employees’ leave entitlements, and workplace best practices.

Layoffs and Employment Insurance

Where permitted by contract or collective agreement, there may be circumstances where employees need to be laid off.

The Manitoba government added a temporary exception to employment standards regulations to give employers more time to recall employees laid off as a result of COVID-19. The period that begins on March 1, 2020, and ends on the day on which the declaration of a state of emergency under section 10 of The Emergency Measures Act concerning COVID-19 is terminated is not to be included in determining if an employee has been laid off for one or more periods exceeding, in total, 8 weeks within a 16-week period.

Employees who are unable to work because of illness, injury or quarantine can apply for Employment Insurance (EI) sickness benefits. The benefits provide up to 15 weeks of income replacement and allow employees time to restore their health and return to work.

To be eligible for EI sickness benefits, an employee must demonstrate that they are unable to work because of illness, injury or quarantine, their regular weekly earnings from work have decreased by more than 40% for a least one week and they have accumulated 600 insured hours of work in the 52 weeks before the start of their claim or since the start of their last claim, whichever is shorter.

Due to COVID-19, Service Canada has implemented new measures with respect to EI sickness benefits as follows: 

  • The one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined so they can be paid for the first week of their claim;
  • Establishing a new dedicated toll-free phone number (1-833-381-2725) to support enquiries related to waiving the EI sickness benefits waiting period;
  • People claiming EI sickness benefits due to quarantine will not have to provide a medical certificate; and
  • People who cannot complete their claim for EI sickness benefits due to quarantine may apply later and have their EI claim backdated to cover the period of delay.

There are potential risks in imposing a layoff in circumstances where there is no agreement providing for the right of layoff. We recommend contacting a Labour/Employment lawyer prior to implementing a layoff.

Accommodating Employees

Employers may be required to accommodate employees under The Human Rights Code (Manitoba) if they are suffering from an illness or family member needs care. In addition, employers may face situations where employees are afraid because they are particularly vulnerable to contracting COVID-19 or to its effects because of a disability or other personal characteristic protected by The Human Rights Code.

The Human Rights Code states that employers cannot discriminate against employees on a number of protected characteristics, including disability, ancestry, nationality or national origin age, family status, and ethnic background or origin.

These requests might trigger the employer’s duty to accommodate the employee to the point of undue hardship. Permitting absenteeism could be an appropriate accommodation in these circumstances. In the alternative, and if it is feasible, so could a remote working arrangement or other reasonable accommodation such as working under a modified schedule or providing time off.

Lastly, employers must also ensure that any precautionary measures implemented in their workplace do not constitute indirect discrimination and should be applicable to all employees. In addition, measures implemented concerning COVID-19 should be consistent with the most recent advice from medical and public health officials, and justified for health and safety reasons.

Leave

In Manitoba, The Employment Standards Code provides for a  number of unpaid statutory leaves that may be relevant to employees faced with a positive diagnosis or recommended quarantine. These leaves apply to provincially-regulated employees.

Family leave

An employee who has been employed for at least 30 days may take up to three days of unpaid leave each year for the health of the employee, or for the employee to meet his or her responsibilities in relation to a family member (spouse, common-law partner, child, or parent).

Usually, the employee must give their employer as much notice as is reasonable and practicable. In the case of an employee with COVID-19, advance notice is not likely to be feasible. However, the employer may require the employee to provide reasonable verification of the necessity of the leave.

If an employee is quarantined on advice from a physician, this would meet the requirement that the leave would is necessary “for the health of the employee” and employers should be judicious about requiring proof of the necessity for leave.

Critical illness

An employee who has been employed for at least 30 days is entitled to an unpaid leave of absence of up to 37 weeks to provide care or support to a critically ill child who is a family member of the employee.

An employee who has been employed for at least 90 days is entitled to an unpaid leave of absence of up to 17 weeks to provide care or support to a critically ill adult who is a family member of the employee.

The employee who wishes to take this type of leave must give the employer notice of at least one pay period unless circumstances necessitate a shorter period, which is very likely the case in the present circumstance. Whether a diagnosis of Covid-19 is a critical illness will depend on the specific case. Typically, the employees would obtain a certificate from the child or adult’s physician; again, the employer should consider the overall climate in reviewing the leave request.

Long-term leave for serious injury or illness

An employee who is seriously injured or ill is entitled to an unpaid leave of absence of up to 17 weeks in any 52-week period, if the employee has been employed for at least 90 days. For an employee to be eligible for leave, a physician must issue a certificate that the employee is expected to be incapable of working for a period of at least two weeks because of a serious injury or illness. There is a notice requirement but, again, advance notice is not likely to be possible for an employee that becomes ill with COVID-19. Before the employee returns to work, the employer may require the employee to provide a certificate issued by a physician stating that the employee is fit to return to work.

If an employee was incapable of working for a period of at least two weeks because of a quarantine supported by a physician’s certificate, it is probable that such circumstances would fall within this type of leave.

Compassionate care leave

An employee who has been employed for at least 90 days is entitled to unpaid compassionate care leave of up to 28 weeks to provide care or support for a seriously ill family member (a spouse, common-law partner, child, or parent) who is faced with a significant risk of death.

The employee must obtain a physician’s certificate stating that the employee’s family member has a serious medical condition with a significant risk of death, which requires the care or support of a family member, with a significant risk of death within 26 weeks from

(i) the day the certificate is issued, or

(ii) if the leave was begun before the certificate was issued, the day the leave began.

Again, the employee must give the employer notice of at least one pay period, unless circumstances necessitate a shorter period and the employee must give the employer a copy of the physician’s certificate as soon as possible.

A compassionate care leave would only be available in the most severe cases where a family member faces a significant risk of death due to COVID-19 illness. 

Other Key Considerations.

Keep the workplace safe and healthy: The Government of Manitoba recommends that employers have an infection prevention and control plan in place. This should include providing clean handwashing facilities and alcohol-based hand cleansers in multiple locations throughout the workplace. Employers should ensure frequently touched surfaces are sanitized on a regular basis.

Consider alternative work arrangements: Health officials are recommending “social distancing” to increase the physical space between people to avoid spreading the novel coronavirus. Where possible, employees should be encouraged to work from home. Employers should avoid holding in-person meetings. The Government of Manitoba has limited gatherings to a maximum of 10 people.

Travel: Non-essential work-related travel should be discontinued. Employees should be strongly discouraged from travelling to an at-risk region outside of Manitoba.

Keep employees informed: Employers should communicate its policies related to leaves, managing absenteeism, providing accommodations, and compensation to employees.

Stay informed: Employers should continue to stay updated on any new information published by public health authorities, and act accordingly.

We are available.

Fillmore Riley’s employment law practice continues to be available to assist Manitoba employers with their response to the COVID-19 pandemic. Our key contacts are:

David Simpson davidsimpson@fillmoreriley.com

Curran McNicol cmcnicol@fillmoreriley.com

Mark Newman marknewman@fillmoreriley.com

Celia Fergusson cfergusson@fillmoreriley.com

Dayna Steinfeld  dsteinfeld@fillmoreriley.com

Jenna Seavers jseavers@fillmoreriley.com

Resource posted March 18, 2020, with reports from Kelsey Yakimoski and Gwen Muirhead.

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