Among other changes introduced in the COVID-19 Pandemic Response Act on March 26, 2020, Newfoundland and Labrador introduced an amendment to the Labour Standards Act, which governs most employment relationships in the province.
This amendment has created an unpaid leave of absence for employees not performing duties for reasons related to a “designated communicable disease”.
The amendment is provides leave for workers affected by COVID-19, but is expected to remain in force in anticipation of potential future incidents of disease outbreak.
Employees, whom meet the following criteria, will be entitled to the leave if they will not be performing duties for the following reasons related to a “designated communicable disease” (i.e. COVID-19):
- The employee is under individual medical investigation, supervision or treatment related to COVID-19;
- The employee is acting in accordance with an order under the Public Health Protection and Promotion Act, in relation to COVID-19;
- The employee is in isolation or quarantine or is subject to a control measure, including self-isolation, and that measure was implemented as a result of information or directions related to COVID-19 issued to the public or directly to an individual by the Chief Medical Officer of Health (currently, Dr. Janice Fitzgerald) or the Province, whether through print, electronic, broadcast or other means;
- The employee is under a direction by their employer in response to the employer’s concern that the employee may expose other employees to COVID-19;
- The employee is providing care or support to any of the following individuals for a reason related to COVID-19, for reasons which include (but is not limited to) a school or child care service closure:
- the employee’s spouse;
- a parent, step-parent or foster parent of the employee or their spouse;
- a child, step-child or foster child of the employee or their spouse;
- a child under legal guardianship of the employee or their spouse;
- a brother, step-brother, sister or step-sister of the employee;
- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or their spouse;
- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
- a son-in-law or daughter-in-law of the employee or their spouse; or
- any other individual prescribed by regulation as a “family member”.
- The employee is directly affected by travel restrictions related to COVID-19 and cannot reasonably be expected to travel back to the Province;
- Other reasons as prescribed by regulations.
An employer may request evidence from the employee supporting entitlement to the leave that is “reasonable in the circumstances”. However, employers cannot require employees to provide a medical certificate, for this purpose.
The leave may be taken for as long as:
- The employee is not performing their duties for the above reasons; and
- COVID-19, or other disease(s) are “designated” by regulation.
Employers are prohibited from dismissing an employee because the employee intends to or takes this new leave.
An employer cannot reinstate an employee returning from this leave to a position with terms that are less beneficial than the employee had, prior to taking the leave.
The time the employee takes for the leave will not count towards other rights or benefits they are entitled to under the Labour Standards Act, unless the employer and employee agree otherwise.
The legislative changes are retroactive to March 14, 2020.
A link to the Bill, which received Royal Assent yesterday, can be found here.
We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.