This post looks at the statutory leaves available to federal employees impacted by COVID-19. A post setting out the statutory leaves for provincially regulated workplaces is available here.
The post answers the following questions:
- How do I know if I am a federally regulated worker?
- What paid leave is available if I am sick?
- What unpaid leaves are available if I am sick or in quarantine?
- What leaves are available if I have to look after children due to the closure of schools and daycares?
- Can I take time off work if I have to look after a sick family member?
- What do I need to do to access unpaid leave?
- What happens when I return to work after going on leave? What are my employer’s responsibilities?
Employees should also check what leaves they may be entitled to under their employer’s policies and/or their collective agreement (if the workplace is unionized). It is important to note that the leaves described in this post are minimum entitlements available to all federal workers. If you are a federal worker and your employer’s policies and/or collective agreement are silent or provide a lesser benefit, you will be entitled to the leaves described below.
1. How do I know if I am a federally regulated worker?
Most employment in Canada is regulated by the provinces rather than by the federal government. However, if you work in the following fields, you are most likely a federally regulated worker governed by the Canada Labour Code (the “Code”):
- Banking
- Marine transportation
- Air transportation, including airports
- Railway and road transportation that involves crossing provincial or international borders
- Telephone and cable systems
- Radio and television broadcasting
- Businesses dealing with the protection of fisheries as a natural resource
- Some First Nation activities
- Most federal Crown corporations
- Private businesses necessary to the operation of a federal undertaking
If none of the above describes your workplace, you are likely a provincially regulated employee and should refer to our post about leave entitlements for provincially regulated workplaces.
2. What paid leave is available if I am sick?
If you are sick, you should find out if you have access to paid sick leave or short-term disability benefits from your employer. The amount of pay you will receive and the requirements for justifying the leave (whether you need to provide a medical note, for example) will be determined by your employer’s leave policies and/or your collective agreement (if you belong to a union).
Whether or not your employer provides paid sick leave, all federal employees are entitled under the Code to five days of personal leave per calendar year. If you have been working for more than three consecutive months, the first three days of personal leave are paid, otherwise all five days are unpaid. Your employer can ask you to provide medical documentation within 15 days of your return to work, but you only have to provide this documentation if it is reasonably practicable for you to do so.
This personal leave can be taken for reasons other than illness, including the care of family members, the education of family members under 18 years of age, or to attend to any other urgent matter concerning the employee or members of their family.
3. What unpaid leaves are available if I am sick or in quarantine?
Federal employees impacted by COVID-19 are entitled to unpaid sick leave under the general Medical Leave provisions of the Code. The Code allows employees to take up to 17 weeks of unpaid Medical Leave if they cannot work due to personal illness or injury, organ or tissue donation, or because they need to attend medical appointments during working hours.
In addition, the Code now has new “Leave Related to COVID-19” provisions for federal employees impacted by COVID-19. Employees who are unable or unavailable to work for reasons related to COVID-19 are entitled to up to 16 weeks unpaid COVID Leave. This includes employees who are in quarantine because they are exhibiting symptoms of COVID-19 or may have been exposed to the virus. Although this leave is unpaid, employees may be eligible for government benefits, as explained here.
Currently the Code’s COVID Leave provisions are set to expire on October 1, 2020. At that point, employees under quarantine will have access to 16 weeks of COVID Leave but may be required to provide their employer with medical documentation if they take more than three days leave. However, both the expiration of the COVID Leave provisions and the documentation requirement may be altered by future legislation.
4. What leaves are available if I have to look after children due to the closure of schools and daycares?
The Code’s COVID Leave is available to federally regulated employees who are unable or unavailable to work for reasons related to COVID-19. Because schools and daycares have been closed to prevent the spread of COVID-19, employees who are unable to work as a result of school closures are likely entitled to COVID Leave of up to 16 weeks. Again, this is unpaid leave, but information about accessing government benefits can be found here.
Your employer may have an obligation to accommodate you in a manner that would allow you to keep working, rather than requiring you to use the Code’s unpaid leave. Information on family status accommodation is available in this post.
5. Can I take time off work if I have to look after a sick family member?
A federally regulated worker who is caring for a family member suffering from COVID-19 would be entitled to up to 16 weeks of COVID Leave because they are unable or unavailable to work due to the disease. Such employees will likely have to quarantine after their family member has recovered and will be entitled to COVID Leave during that time as well.
The Code also provides for unpaid Critical Illness Leave and unpaid Compassionate Care Leave that may be available to federal employees impacted by COVID-19.
Critical Illness Leave allows a worker who is caring for a critically ill child to take up to 37 weeks of unpaid leave. A worker caring for a critically ill adult is entitled to 17 weeks. A person is considered “critically ill” when their baseline state of health has changed significantly because of illness or injury and, as a result, their life is at risk.
Compassionate Care Leave is available for up to 28 weeks for workers caring for a family member with a serious medical condition where there is a significant risk of death within the next 26 weeks.
Under the Code, “family members” include immediate family as well as other relatives and individuals considered to be like family. It is not necessary to be related by marriage, a common-law partnership, or any legal parent-child relationship.
While all of these leaves are unpaid, information about accessing government benefits while on unpaid leave can be found here.
6. What do I need to do to access unpaid leave?
To access any of the Code’s leaves, an employee must give their employer written notice that they intend to take leave, and include the expected duration of the leave. The duration can be changed with further written notice. For COVID Leave, Critical Injury Leave and Compassionate Care Leave, notice does not need to be given in advance. For Medical Leave, an employee who can give at least four weeks advance notice should do so. If that is not possible, notice should be given as soon as it is possible.
Normally an employer can require employees to give a written declaration supporting their reasons for taking leave. However, medical documentation is not required for employees taking COVID Leave. The documentation requirement for those taking Medical Leave, Critical Illness Leave and Compassionate Care Leave has been suspended until September 30, 2020. After that date, employers can require medical documentation from any employee taking more than three days’ leave, although that date or the requirements for documentation may be changed by future legislation.
7. What happens when I return to work after going on leave? What are my employer’s responsibilities?
You cannot be dismissed, suspended, laid off, demoted or disciplined for accessing unpaid leave entitlements under the Code, or for telling your employer that you intend to take them.
When considering an employee for promotion or training, an employer cannot take into consideration the fact that the employee has taken an unpaid leave.
Your employer is required to return you to the same position you held before you took your leave of absence. If the employer has a valid reason not to return you to that position, it must provide you with a comparable position, with the same wages and benefits and in the same location. You are also entitled to any wage increase that may have been implemented for employees in your division while you were on leave. Your employer must notify you of any changes to wages or benefits that will impact you when you return.
Your pension, health and disability benefits will continue to accrue while you are on leave, as long as you continue to pay any required employee contributions. You will also continue to accrue seniority and your employment will be deemed to be continuous.
Finally, if you need to take an unpaid leave during or prior to a scheduled vacation, you can interrupt or reschedule your vacation to do so. Similarly, a leave of absence can be interrupted and resumed.
For example, if an injured employee on Medical Leave is diagnosed with COVID-19, they can notify their employer that they are accessing COVID Leave and then return to Medical Leave when they have recovered from the illness. In this way, an employee may be on job protected leave for more than the maximum number of weeks provided by a single leave entitlement.