On April 14, 2020, the government of Manitoba announced an unpaid job-protected leave for employees who require time away from work for reasons related to the COVID-19 pandemic.
The new Public Health Emergency Leave (the “Leave”) is now reflected in section 59.12 of The Employment Standards Code (Manitoba) (the “Code”). Section 59.12(4) of the Code clarifies that an employee taking the Leave “may be required to provide the employer with reasonable verification of the necessity of the leave as soon as practicable.”
There is no prescribed duration of the Leave, and it will conclude once the circumstances listed above no longer apply to the employee.
There is no minimum length of time that an employee must be employed in order to be entitled to the Leave; however, employees must provide their employer as much notice as is reasonable in the circumstances and sufficient information to confirm that they meet the requirements of the Leave. What constitutes reasonable verification will be determined on a case-by-case basis. Employers should only generally seek to confirm that the employee is facing one of the eligible circumstances listed above, and a brief explanation by the employee would likely be sufficient.
There is no employee requirement to produce a medical certificate and employers are not permitted to request a medical certificate to verify an employee’s eligibility to the Leave. While the Leave is retroactive, which may have some impact on how time off has been characterized for employment purposes, employers should not worry unduly if they have asked for and obtained medical support for absences prior to this announcement. However, employers should continue to follow best practices for confidentiality of medical information, including limiting disclosure to only those employees who require access or as otherwise required by law.
Employment is considered to be continuous during the Leave. As such, an employee’s seniority continues to accrue during the Leave, and the employee remains entitled to any pension and other benefits they had prior to the Leave.
At the end of the Leave, employers are obligated to return employees to the same (or comparable) position they held prior to taking the Leave. Employers may not terminate, lay off, or otherwise discriminate against an employee specifically because they have taken this Leave. Notably, an employer is not precluded from terminating or laying off employees for bona fide business reasons unrelated to the Leave, including for example, a shut-down of operations or a reduction in workforce based on seniority due to the COVID-19 pandemic.
The MLT Aikins LLP labour and employment team will continue to monitor the situation and provide additional updates as they become available. Employers considering the impact of this announcement should contact a member of our labour and employment team in Winnipeg.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.