Federally regulated employees with COVID-19 may be wondering what their employment law rights are. It’s easy for federally regulated workers to get lost in the mix. The vast majority of employees are provincially regulated – and there’s been a lot of press around provincially regulated Ontario employees’ new rights in light of the coronavirus pandemic. However, a small but no less important segment of Ontario workers fall under federal regulation instead of provincial regulation. This means different laws apply to their work, including different rights in responding to COVID-19. The laws affecting federally regulated employees were amended yesterday (24 March 2020).
CAUTION: LAWS ARE CHANGING QUICKLY IN RESPONSE TO COVID-19. THIS BLOG POST MAY NOT CONTAIN THE MOST CURRENT INFORMATION AND IS NO SUBSTITUTE FOR LEGAL ADVICE. CONSULT YOUR UNION OR YOUR LAWYER IF YOU HAVE SPECIFIC CONCERNS ABOUT YOUR RIGHTS AT WORK.
Who are federally regulated employees?
You are likely federally regulated if you work in one of the following industries:
- Marine shipping, ferry and port services
- Air transportation, including airports, aerodromes and airlines
- Railway and road transportation that involves crossing provincial or international borders
- Canals, pipelines, tunnels and bridges (crossing provincial borders)
- Telephone, telegraph and cable systems
- Radio and television broadcasting
- Grain elevators, feed and seed mills
- Uranium mining and processing
- Businesses dealing with the protection of fisheries as a natural resource
- Many First Nation activities
- Most federal crown corporations
- Private businesses necessary to the operation of a federal act
However, there are exceptions and sometimes it’s not that obvious what industry you work in. For example, if you work for an air ambulance provider do you work in the air transportation industry or the health care industry? If you work in an insurance office owned by a bank, are you in the insurance industry or the banking industry? If you’re unsure, you should contact your union or an employment lawyer to get some advice.
What laws cover federally regulated employees who miss work because of COVID-19?
For most workers in Ontario, the provincial Employment Standards Act, Occupational Health and Safety Act, Labour Relations Act and Human Rights Code work togetherto set their minimum rights at work. Ontario workplaces are also affected by the Declaration of Emergency and Emergency Orders made by Premier Ford this month. If you’re provincially regulated, please check out our Coronavirus FAQ Post.
For federally regulated employees, the federal Canada Labour Code and the Canadian Human Rights Act provide minimum standards for everything from minimum wage and sick leave to the refusal of unsafe work to non-discrimination on the basis of disability or parental status. Bill C-13 amendes the Canada Labour Code in response to the COVID-19 pandemic.
Federally regulated employees may access 3 paid sick days and 17 weeks of unpaid sick leave
Federally regulated employees get up to 5 days of “personal leave” each year. This can be used for things like a personal illness, to care for a family member, to attend to their child’s education, or to address other urgent matters. Employees with at least 3 months of service are entitled to have the first 3 of these personal leave days paid at their regular rate for their normal hours of work. An employee can be asked to provide documentation to support their time off. This may be a good fit for employees WHO ARE home with children because of school cancellations or for the first few days of leave due to COVID-19 illness or quarantine.
Federally regulated employees’ minimum rights include up to 17 weeks of unpaid leave for personal illness. Federally regulated employees who need a medical leave of absence should give written notice to their employer as soon as possible and should tell their employer how long they expect to be off, if they can do so. Any pension, health or disability benefits should continue while the employee is off work, but if an employee contributed to these benefits on their paycheque before their leave, they still need to do so. Federally regulated employees may have additional rights if their illness is work-related. This leave may be appropriate for employees who contract COVID-19.
Previously, employees could be asked to provide a medical certificate from a health care practitioner certifying they are incapable of work if they needed more than 3 days off. Yesterday’s amendments eliminate that obligation.
What if I’m self-isolating?
Yesterday’s amendments to the Canada Labour Code gives eligible employees who are quarantined access to 16 weeks of medical leave, too. In other words, you don’t have to actually be sick to get medical leave. Quarantined people (such as those exposed to COVID-19 or who recently travelled) who are not sick can access unpaid leave.
What if I’m healthy but I’m home with my children because of COVID-19 school closures?
Other federally regulated employees affected by COVID-19 can also access an unpaid leave of up to 6 weeks. To access this leave, the employee needs to give notice to their employer of the reason for their leave and how long they expect it to last. They may be asked to provide a written declaration in support of their leave. Unlike the law for provincially regulated employees, the federal rules don’t specifically mention childcare; However, employees whom with childcare needs arising from daycare and school closures may be able to access this leave. We’ll be monitoring how this provision is understood by lawyers, judges and politicians. As with all leaves, if you’re unsure if you’re covered you should seek legal advice.
What are my rights if a family member gets sick with COVID-19?
While we hope that none of our readers experience serious family illness due to the coronavirus, federally regulated employees may be able to access additional leave in those circumstances.
Federally regulated employees who need to care for a close family member who has a serious medical condition with a significant risk of death can take up to 28 weeks of unpaid leave to care for that person.
Federally regulated employees who need to provide care to a critically ill member of their immediate family can access an unpaid leave of absence of up to 37 weeks if the sick person is their child or 17 weeks if the sick person is an adult.
Normally, they could be asked to provide a medical certificate confirming that their family member is critically ill or have a serious medical condition in order to take these leaves. Yesterday’s amendments eliminate this requirement.
What if I don’t fall into one of these categories?
In addition to the minimum standards set by the Canada Labour Code, federally regulated employees may have additional rights under their employment contract, collective agreement or employer’s policies. If you’re unsure what rights you have, you should contact your union or an employment lawyer.
Federally regulated employees with disability-related needs that affect their ability to work during the COVID-19 pandemic or who have new childcare (or elder care) obligations because of the coronavirus may also have rights under the Canadian Human Rights Act. The right not to be discriminated on the basis of disability or parental status under the Canada Human Rights Act has been interpreted to require employers to reasonably accommodate disability-related or parenting needs up to the point of undue hardship. You can find out more about parental status accommodation here or here. Every disability- or parental-status accommodation case is different, so if you have concerns you should contact your union or an employment lawyer for advice specific to your situation.
What about government employees?
Federally regulated employees of the Government of Canada may be subject to additional directives not covered in this blog post. They can find more information here.
What if my employer closes or lays people off because of COVID-19?
No law prevents an employer from terminating an employee’s employment or laying them off for business reasons. You may be affected by layoffs even if you are on a job-protected leave. You may also be terminated for cause if you’ve committed misconduct. These rights prevent you from being discriminated against or losing your job because you took a protected-leave.
Federally regulated employees also have different minimum rights upon termination than provincially regulated employees, though that may be a topic for a future blog post – and these rights may be affected by collective agreements, employment contracts, or the common law. Here’s a primer on severance packages that you can check out.
Can federally regulated employees access EI benefits for workers affected by COVID-19?
Yes. EI eligibility is no different for federally regulated employees than provincially regulated employees.
An Act respecting certain measures in response to COVID-19
Canada Industrial Relations Board
Canadian Human Rights Commission
CERB- Canada Emergency Response Benefit
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