Bill 38 passed in Legislature on June 16, 2020 and received royal assent on June 18. The new legislation amends the Employment Standards Act to provide for unpaid sick leave for workers required to be absent from work due to an emergency like COVID-19. The changes are retroactive to March 16, the start of the pandemic. For more see below.
The Prince Edward Island government introduced Bill 38, An act to amend the Employment Standards Act (No.3) on May 26, 2020. If enacted, upon royal assent and effective retroactively to March 16, 2020, Bill 38 would create a new emergency leave of absence for qualifying employees under the Employment Standards Act.
For the purpose of the leave, “emergency” means any one or more of the following have the effect of preventing an employee from performing the employee’s work duties, including:
- An emergency declared under the Emergency Measures Act;
- A public health emergency declared under the Public Health Act;
- A direction or order of a public health official or the Chief Public Health Officer under the Public Health Act;
- An emergency declared under Part 1 to 3 of the Emergencies Act (Canada);
- An order of a quarantine officer under the Quarantine Act (Canada);
- A circumstance specified under emergency affecting a family member; and
- A circumstance specified in the regulations.
“Family member” in respect to an employee means a person who is a member of either the immediate or extended family of the employee.
Emergency affecting a family member includes a circumstance that applies to a family member of an employee in the definition of emergency where,
- The declaration, direction, order or other circumstance directly applies to the family member of the employee;
- The declaration, direction, order or other circumstances results in a situation where the family member of the employee requires care or assistance;
- The employee is the only person reasonably able in the circumstances to provide the family member with the required care or assistance; and
- Providing the required care or assistance to the family member has the effect of preventing the employee from performing the employee’s work duties.
During an emergency (as defined in the ESA), an employee is entitled to an unpaid emergency leave of absence for the duration of the time when the employee cannot perform the duties of the employee’s position because of the emergency.
The leave applies to an employee who is:
- In isolation or quarantine, or is subject to a control measure, including self-isolation, where the quarantine, isolation or control measure was implemented as a result of information or directions issued to individuals or the public by the Chief Public Health Officer related to a communicable disease prescribed in the Notifiable Diseases and Conditions and Communicable Diseases Regulations (EC560/13) made under the Public Health Act;
- Under a direction given by the employee’s employer in response to a concern of the employer that the employee may expose other persons in the workplace to a prescribed communicable disease referred to in the first bullet point; or
- Out of the province and is directly affected by a travel restriction related to a prescribed communicable disease referred to in the first bullet point and in the circumstances cannot reasonably be expected to return to the province.
The emergency leave of absence continues as long as the emergency continues and prevents the employee form performing work but ends the day the emergency is terminated or no longer prevents the employee from performing his or her work duties.
Notice of intent to take the leave
An employee must give the employer as much notice as is reasonably possible. If the leave is required before notice can be given, the employee must give notice as soon as possible after the emergency leave begins.
Justification to take the leave
An employee must provide the employer, if requested and within a reasonable time frame (depending on the circumstances), evidence that is reasonable in the circumstances and in accordance with the regulations that the employee is entitled to emergency leave. However, the employee is not required to provide a medical certificate (doctor’s or nurse practitioner’s note) as evidence.
When an employee returns to work following the end of an emergency leave, the employer must allow the employee to resume work in the position the employee held immediately before the emergency leave began or, if that position no longer exists, in a comparable position with no less pay and benefits the employee would have received if the employee had not taken emergency leave of absence.
On May 26, 2020, the Prince Edward Island government introduced Bill 38, An act to amend the Employment Standards Act (No.3). If enacted, Bill 38 would create a new emergency leave of absence for qualifying employees under the Employment Standards Act for the duration of the time the employee cannot perform work during an emergency. The Bill is still in first reading as of May 29, 2020.
Previously published: The province did not implement a COVID-19 leave, however, it has created a special For Business COVID-19 website geared to answering questions for employers and self-employed individuals. Financial measures the government has put in place for businesses include:
- The Emergency Income Relief Fund: A temporary program put in place to support the self-employed who have been significantly affected by COVID-19. There is a maximum payment of $500 per week for the period of March 16 to March 29, 2020 (this period will be reviewed as required). Information on eligibility and how to apply can be found here.
- Emergency Working Capital Financing: A financing program has been developed to provide emergency working capital financing to assist PEI’s small businesses during this unprecedented economic disruption to business caused by the Covid-19 pandemic. This new loan program is to assist qualifying companies maintain normal business operations during these difficult times. Eligible applicants can apply to receive a working capital loan of up to $100,000 with a fixed interest rate of 4 percent per annum to be used to assist with fixed operating costs (including payroll, rent, utilities, etc.) with principal and interest payments deferred for a minimum of 12 months. See if you qualify and learn how to apply here.
In addition, the government has prepared an FAQ page to answer frequently asked questions employers have on the application of the Employment Standards Act and Occupational Health and Safety Act during the COVID-19 pandemic here.
The government has not yet indicated if they plan to amend employment/labour standards.
On April 1, 2020, the government introduced the COVID-19 Income Support Program, intended to assist employees experiencing a loss of income. This fund will provide one-time, taxable payments of $750 for eligible employees.