Dentist employers must know their legal responsibilities and their rights surrounding employee’s leave of absence options, as updates and new benefits are announced by the Canadian government.
On August 20, 2020, the federal government announced an extension of the Canada Emergency Response Benefit (CERB) program plus three NEW benefits for employees who don’t fit the CERB criteria. The new benefits are the Canada Recovery Benefit, the Canada Recovery Caregiving Benefit, and the Canada Recovery Sickness Benefit.
Canada Recovery Benefit (CRB)
- $400/week for up to 26 weeks to workers who are not eligible for EI, still require income support and are available and looking for work
Canada Recovery Caregiving Benefit (CRCB)
- $500/week for up to 26 weeks per household for eligible persons who cannot work because they must care for:
- a child under 12 due to school or daycare closures as a result of COVID19
- a family member with a disability or a dependent whose day program or care facility is closed due to COVID19
- a child, family member with a disability or a dependent who is not attending school, daycare, or other care facilities under the advice of a medical professional due to being at high-risk if they contract COVID19
- a child, family member with a disability or a dependent whose caregiver usually provides care is not available for reasons related to COVID19
Canada Recovery Sickness Benefit (CRSB)
- $500/week for up to 2 weeks for workers who are sick or must self-isolate for reasons pertaining to COVID19.
- the employee cannot also be receiving other paid sick leave during the same period
- they do not require a medical certificate
For better or for worse, these new options will inevitably manifest in an uptick of absences from work. So as an employer, you need to know your legal responsibilities as well as your rights surrounding an employee’s leave(s) of absence.
ESA Leaves of Absence
The Employment Standards Act (ESA) gives the employee several options for leaves of absence while they or a family member are sick. While the Declared Emergency Leave and Infectious Disease Emergency Leave cannot currently be used for non-COVID19 issues, employees can use the general ESA leaves in part or in full for COVID-related reasons.
Each of the ESA leaves of absence is job-protected, meaning that the employer must hold the job for the employee taking the leave. The leaves are also separate and do not overlap, allowing them to be taken consecutively. An employee may also have a right to take more than one leave for the same event.
- Sick Leave
- Family Responsibility Leave
- Family Caregiver Leave
- Family Medical Leave
- Critical Illness Leave
- Declared Emergency Leave
- Infectious Disease Emergency Leave
Sick Leave
- three (3) days per year of unpaid leave
- due to illness or injury of the employee
Family Responsibility Leave
- three (3) days per year of unpaid leave
- due to illness, injury, emergency or urgent matter relating to certain relatives
“Urgent matter” is described as an event that is unplanned or out of the employee’s control and can, if not responded to, cause serious negative consequences, including emotional harm.
An actual COVID19 infection is not the only situation in which an employee may take advantage of this leave. For instance, if their child’s school or daycare discloses a COVID19 case or exposure, the employee may want to keep their child home as a precaution. Such an event can conceivably be classified as an “urgent matter,” which may cause serious negative consequences, including emotional harm.
Family Caregiver Leave
- eight (8) weeks per year, per specified family member, of unpaid leave
- to provide care or support to certain family members for whom a health practitioner has issued a certificate stating that they have a serious medical condition
“Care or support” includes but is not limited to providing psychological or emotional support.
Family Medical Leave
- twenty-eight (28) weeks unpaid leave in a 52-week period
- to provide care or support to a family member (or a person who considers the employee to be like a family member) in respect of whom a qualified health practitioner has issued a certificate indicating that they have a serious medical condition with a significant risk of death occurring within 26 weeks
The difference from the family caregiver leave is that the medical leave requires the added serious risk of death. Unfortunately, COVID19 is a serious illness for some people and can end with death. If a family member contracts COVID19 and exhibits severe symptoms, it is plausible that a health professional would issue a certificate stating that the family member has a significant risk of death within 26 weeks.
Critical Illness Leave
- up to 37 weeks (in relation to a minor child) or 17 weeks (in relation to an adult) within a 52-week period
- to provide care or support to a critically ill minor child or adult who is a family member of the employee and for whom a qualified health practitioner has issued a certificate stating that the family member is critically ill and requires a family member’s care or support for a specified amount of time
- only employees who have worked for 6+ consecutive months are eligible
Like the Family Caregiver Leave, the Critical Illness Leave may be an option for an employee whose family member is diagnosed with COVID19 with symptoms that are severe enough to be deemed “critical.”
Declared Emergency Leave
- explicitly added in response to the COVID19 pandemic
- offered to employees laid off due to COVID19 (from March 17, 2020, to July 24, 2020) under the Emergency Management and Civil Protection Act
- as the emergency has now been terminated, this leave is no longer valid
In the event that a subsequent wave of COVID19 requires mass business closures, we may see this leave revived.
Infectious Disease Emergency Leave
- unpaid leave of no specified duration (so it can be short or long term) due to COVID-related reasons as follows:
- personal illness, quarantine or isolation related to COVID19
- concern by the employer that the employee may expose other individuals in the workplace to COVID
- time to provide care or support for family members for a reason related to COVID, including school or daycare closures
- due to certain travel-related restrictions
This leave would apply to employees who are keeping their children home from school due to COVID19 concerns.
There are other leaves of absence within the ESA, which may also be applicable, including bereavement leave, organ donor leave or child death leave.
Human Rights & Discrimination
Beyond the ESA lies the Human Rights Code of Ontario. The Code states that employers may not discriminate against employees based on grounds including disability or family status and that the employer must accommodate employees who have such disabilities.
According to the Human Rights Tribunal of Ontario (HRTO), “disability” is to be interpreted broadly and includes past, present and perceived conditions. COVID19 and its many symptoms (short and long-term) fall under this broad definition. Consequently, discrimination based on COVID19 (leave of absence or otherwise) may lead to a human rights complaint.
The HRTO describes the ground of “family status” as protecting
- parent(s) who experience discrimination because they have children
- adult children who experience discrimination because they are caring for their ageing parent(s)
- non-biological parent and child relationships, such as those formed through adoption, fostering, and step-parenting
So, an employee with a child or a parent suffering from COVID-related symptoms would be protected under this ground. Treating such an employee differently would amount to discrimination and would likely lead to a human rights complaint.
Bottom Line
What it all boils down to is that in a COVID-related event (such as a leave of absence) involving an employee or their loved ones, an employer must ALWAYS ask themselves “would a termination, disciplinary action or some other change in the employee’s terms of employment amount to DISCRIMINATION?” If so, then you must seek out professional advice and may have to explore accommodation options with the employee.
For more information on an employer’s duty to accommodate, please read our previous blogs and publications and the HRTO website.
If you are unsure of your rights/responsibilities as an employer, please contact us first. We are happy to help and offer more information on these and any other employment issues. DMC is dedicated to helping dentists understand and minimize the risks associated with being an employer. Send DMC an email or give our Employment Law Team a call directly at 416-443-9280 extension 206.
