This article was originally published on April 15, 2020.
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 Public Health Emergency Leave (the “Leave”) is reflected in section 59.12 of The Employment Standards Code (Manitoba) (the “Code”).
Update: As announced on October 26, the Province of Manitoba is seeking to make legislative amendments to the Employment Standards Code (Manitoba) in order to close gaps between the provincial Leave and two of the new federal income benefits (i.e., the Canada Recovery Sickness Benefit and Canada Recovery Caregiving Benefit) that took effect on September 27. The province is proposing to align the eligibility requirements of the Leave with those of the federal benefits, such that, retroactive to September 27, the provincial Leave entitlements would be extended to workers who are more susceptible to COVID-19 because of underlying health conditions, ongoing medical treatments or other illnesses. The province is also proposing changes to allow the province to amend provisions of the Leave, if needed moving forward, by way of regulation and not legislation.
Under the Canada Recovery Sickness Benefit, Canadian workers have access to paid sick leave in the amount of $500 per week for up to two weeks if, among meeting other requirements, they are unable to work at least 50% of their scheduled work week for one of the following reasons:
- they are sick with COVID-19 or may have COVID-19;
- they are advised to self-isolate due to COVID-19 by their employer, the government or a medical professional; or
- they have an underlying health condition that puts them at greater risk of getting COVID-19, as advised by the government or medical professional.
The Canada Recovery Caregiving Benefit is intended to provide support in the amount of $500 per week for up to 26 weeks for workers who, among meeting other requirements, are unable to work at least 50% of their scheduled work week because they are caring for a family member, including a child under the age of 12 or a family member who needs supervised care for one of the following reasons:
- their school, daycare, day program, or care facility is closed or unavailable to them due to COVID-19;
- their regular care services are unavailable due to COVID-19; or
- they are sick with COVID-19 or have symptoms of COVID-19, are at risk of serious health complications if they get COVID-19, as advised by a medical professional, or are self-isolating due to COVID-19.
For more information on the federal COVID-19-related benefits, see our blog.
There is no prescribed duration of the Leave, and it will conclude once the circumstances listed above no longer apply to the employee.
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 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. Employers should also 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 the Public Health Emergency Leave 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.