On April 6, 2020, Goldblatt Partners held its first in a series of webinars discussing the important issues facing unions and workers in this age of COVID-19. We called it Keeping Up with COVID-19: An overview of legislative changes & emergency orders affecting workers and unions. Hundreds of people took part and many COVID-19 employment questions were asked, particularly about the impact of the pandemic on employees.
The three BIG employment questions we received from those who attended were:
- If I started collecting regular EI benefits prior to March 15, 2020, and my EI payments cease, can I collect the CERB even though I did not lose my job because of COVID-19?
- If I have to care for a child or other family member during COVID-19, can I get a leave of absence? And do I qualify for the CERB?
- Do essential workers who are stressed or worried about contracting COVID-19 qualify for emergency leave or emergency benefit provisions?
Note: Nothing in this post should be interpreted as legal advice. Every situation depends on specific facts. We are simply providing general answers and information to the most common questions arising from the webinar. If you are an employee and you have questions about your employment rights or want legal advice, contact us.
If I started collecting regular EI benefits prior to March 15, 2020, and my EI payments cease, can I collect the CERB even though I did not lose my job because of COVID-19?
This was one of the most common COVID-19 employment questions arising from the webinar. The short answer is everyone’s favourite answer from lawyers: Maybe.
To qualify for the Canadian Emergency Response Benefit (CERB), you must have ceased working *because* of COVID-19. If you lost your job for reasons unrelated to COVID-19, which would almost certainly be the case for employees who lost work prior to March 15, 2020, then you would likely not qualify for the CERB.
However, the government of Canada recently announced two exceptions to this general rule. It has extended CERB to two categories of workers who have used up their employment insurance (EI) benefits, even if they lost their job prior to March 15, 2020:
- Seasonal workers who have run out of regular EI benefits but cannot return to work due to COVID-19 will now be eligible to collect the CERB, provided they satisfy the general requirements relating to income
- Workers who have recently exhausted their EI regular benefits, and who are unable to find a job or return to work because of COVID-19, are now eligible for the CERB.
The common thread in these exceptions is that a worker who exhausts EI benefits must remain out of work because of COVID-19. It is not clear how the government of Canada will make this assessment.
As the guidelines currently stand, anyone who does not satisfy these two conditions would have to qualify under the regular rules of CERB. For more information on what those rules are, please see our previous post here.
If I have to care for a child or other family member during COVID-19, can I get a leave of absence? And do I qualify for the CERB?
Another one of the COVID-19 employment questions arising from the webinar involves leaves of absence, and whether an employee on a leave of absence might qualify for the CERB.
In Ontario, Employment Standards Act amendments added a new leave related to COVID-19: Infectious Disease Emergency Leave. This new leave gives employees a right to an unpaid leave of absence for a number of COVID-19-related reasons, including a leave to provide care or assistance to a child, spouse or parent, among other categories of loved ones.
An employee who exercises this leave will have their job protected. But, to be clear, the leave is unpaid. This is where the CERB steps in.
To qualify for the CERB, an employee must have earned less than $1,000 for 14 consecutive days within the first four-week payment period. If an employee takes an Infectious Disease Emergency Leave for 14 days or more to, for example, look after a child who is not in school because of COVID-19, and the employee earns less than $1,000.00 in income during that period, the employee will most likely qualify for the CERB.
If the leave of absence extends beyond the first four-week window to subsequent payment periods, the maximum earnings allowed while collecting the CERB is $1,000 for each four-week period.
It is important to note that employees’ benefit coverage, pension contributions, and service and seniority may be affected by taking a leave of absence. Employees should review their employment contracts or collective agreements to be certain of the financial impact of taking the unpaid leave of absence.
Do essential workers who are stressed or worried about contracting COVID-19 qualify for emergency leave or emergency benefit provisions?
Other frequent COVID-19 employment questions arising from our webinar related to the worry and stress that many front line workers are understandably experiencing in this difficult time. In particular, many webinar participants wanted to know if front line workers qualify for emergency leaves of absence and/or for benefits.
The provincial government has declared that certain sectors of the economy to be “essential”. Businesses and services included in these essential sectors can continue to operate during this time of emergency.
In Ontario, the essential sectors include health care, certain retail food stores, and certain construction projects, among others. If an employee who works for an essential business or service is required to attend work, then the usual rules of employment apply. That is, generally speaking, an employee must attend work unless they qualify and/or are approved for a leave of absence by their employer.
Ontario’s Infectious Disease Emergency Leave includes a number of categories of leave. However, none of them contemplate “stress” or “worry” as a basis for taking leave. It does not appear likely that an individual who is worried about contracting COVID-19 would be able to access this emergency leave. However, an employee may qualify for some other form of medical leave of absence or an accommodation under the Human Rights Code. This would depend on the specific facts of the situation.
Whether an employee approved for a leave of absence will be able to collect the CERB will depend on whether they satisfy the general CERB requirements. You can also click here for more information about qualifying for the CERB.
For more on the requirement to work during COVID-19, please see our post here. And for information about the right to refuse work you believe is unsafe, please see this post.