Keeping up with COVID: An overview of legislative changes & emergency orders affecting workers and unions - Daniel Sheppard Goldblatt Partners LLP
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Keeping up with COVID: An overview of legislative
changes & emergency orders affecting workers and unions
Daniel Sheppard
Goldblatt Partners LLP
© GOLDBLATT PARTNERS April 9, 2020 1Agenda
Leave Entitlements
Employment Insurance Changes
The Canadian Emergency Response Benefit
Emergency Orders
Q&A
© GOLDBLATT PARTNERS April 9, 2020 2Leave Entitlements
Both Ontario and Federal legislation provide for
job-protected leaves in various circumstances (e.g.
pregnancy, sick, bereavement, etc.)
Generally unpaid, but job-protected: cannot be
fired/punished for taking time off work
Can still be fired while on leave for other reasons
© GOLDBLATT PARTNERS April 9, 2020 3Leave Entitlements
Pre-COVID, neither Ontario nor Federal laws were
properly equipped to deal with this situation
Sick leave would not apply to persons urged to
self-isolate but who were not feeling ill
Critical illness leave for children would not apply
to take care of kids due to school closures
Ontario “declared emergency leave” very narrow
in who it applied to
© GOLDBLATT PARTNERS April 9, 2020 4Leave Entitlements – Response to COVID
Both Ontario & Federal governments implemented
new leave rules to better respond to COVID
Ontario and Federal leaves differ significantly from
one another
Both remain job protected & unpaid
© GOLDBLATT PARTNERS April 9, 2020 5Ontario: Infectious Disease Emergencies
Ontario amended the Employment Standards Act
to provide leaves for “designated infectious
diseases”
Currently all diseases caused by a novel
coronavirus (including COVID-19) are designated
for the purpose of the leave
© GOLDBLATT PARTNERS April 9, 2020 6Ontario: Infectious Disease Emergencies
The leave is available in 6 situations related to the
designated disease
No maximum duration. Leave lasts for so long as:
The specific disease continues to be designated
by the government; and
One or more of the 6 situations continues to
apply
© GOLDBLATT PARTNERS April 9, 2020 7Ontario: Infectious Disease Emergencies
Grounds on which to take leave (related to COVID)
1. EE is under individual medical investigation,
supervision or treatment;
2. EE is acting in accordance with an order under
the Health Protection and Promotion Act
3. EE is under direction from ER in response to
concern of ER that EE may expose others in
the workplace
© GOLDBLATT PARTNERS April 9, 2020 8Ontario: Infectious Disease Emergencies
4. EE is providing care or support to one of
several specified family members for a matter
related to the disease, including school
closures
5. EE is directly affected by travel restrictions and,
under the circumstances, cannot reasonably be
expected to travel back to Ontario
© GOLDBLATT PARTNERS April 9, 2020 9Ontario: Infectious Disease Emergencies
6. EE is in quarantine, isolation or subject to a
control measure (including self-isolation)
implemented as a result of information or
directions issued to the public or one or more
individuals by a public health official, a qualified
health practitioner, Telehealth Ontario, the
Government of Ontario, the Government of
Canada, a municipal council or a board of
health
© GOLDBLATT PARTNERS April 9, 2020 10Ontario: Infectious Disease Emergencies
As with other leaves, ER may require EE to
provide evidence that is reasonable in the
circumstances to show entitlement, but…
Evidence must only be demanded “at a time that
is reasonable in the circumstances”
ER cannot require a medical certificate/doctor’s
note as evidence
© GOLDBLATT PARTNERS April 9, 2020 11Ontario: Infectious Disease Emergencies
The leave entitlement applies retroactively to
January 25, 2020
Any worker who was not working as of that date
and falls under one of the six categories is deemed
to have been taking this leave – so anti-reprisal
rules would apply
© GOLDBLATT PARTNERS April 9, 2020 12Federal: Leave Related to COVID-19
Canada Labour Code amended to provide a
specific leave solely for COVID-19
Applies to workers who are “unable or unavailable
to work for reasons related to” COVID-19
No further list of pre-conditions
© GOLDBLATT PARTNERS April 9, 2020 13Federal: Leave Related to COVID-19
Leave has a maximum duration of 16 weeks, but may
be varied by regulation
Employer may not demand a medial certificate/note,
but may require a written declaration from EE
Available as of March 25, 2020. It is not retroactive
Legislation automatically repeals on October 1st
© GOLDBLATT PARTNERS April 9, 2020 14Federal: Quarantine Leave
On October 1, 2020, COVID leave is replaced with
a general Quarantine Leave that is not set to
expire
Provides up to 16 weeks leave for person under
quarantine
After 3 days, ER may demand a medical note
© GOLDBLATT PARTNERS April 9, 2020 15Comparison of Leaves
Provincial Leave Federal Leave
Entitlement 6 specific situations related to Any reason related to COVID-19
any designated disease
Max Duration None (so long as entitlement 16 weeks
continues to exist)
Start date January 25, 2020 March 25, 2020
End date Permanent enactment October 1, 2020
Evidence Anything – other than medical Written declaration from
note – that is reasonable in the employee. No medical note may
circumstances; to be provided at be demanded.
a reasonable time
© GOLDBLATT PARTNERS April 9, 2020 16Agenda
Leave Entitlements
Employment Insurance Changes
The Canadian Emergency Response Benefit
Emergency Orders
Q&A
© GOLDBLATT PARTNERS April 9, 2020 17Employment Insurance – Always Changing
Significant portions of the Employment Insurance
scheme dealt with in regulations as opposed to the
Employment Insurance Act
Very easy for the government to change
regulations, and they do so frequently, including in
response to COVID
© GOLDBLATT PARTNERS April 9, 2020 18Employment Insurance – Always Changing
Three sets of changes we have seen in so far in
response to COVID-19
1. Waiver of waiting period for certain benefits;
2. Changes to rules respecting evidence required
to apply;
3. New legislative powers for Minister to make
“interim orders”
© GOLDBLATT PARTNERS April 9, 2020 19Employment Insurance – Waiting Periods
Normally there is a 1-week waiting period before a
person can access EI Benefits
As of March 11, 2020, this period is waived for
persons applying for EI sickness benefits due to
quarantine (either mandatory or requested by
public health officials to protect the health & safety
of the public at large)
© GOLDBLATT PARTNERS April 9, 2020 20Employment Insurance – Medical Evidence
Many EI benefits normally require claimants to
submit medical certificates to establish eligibility
Accessing EI Sickness and EI Caregiver benefits
generally require this
Loosening of this rule began on March 11, and
was expanded on March 25, 2020
© GOLDBLATT PARTNERS April 9, 2020 21Employment Insurance – Medical Evidence
Until September 1, 2020, any requirement in either the
EI Act or Regulations requiring a certificate issued by a
medical professional are of no effect
All persons applying for such benefits are treated as if
they had provided such a certificate
Benefits that are in place as of September 1 are
grandparented in
© GOLDBLATT PARTNERS April 9, 2020 22Employment Insurance – Interim Orders
To increase flexibility of EI system during COVID-
19, the Minister of Employment and Social
Development now has the power to make “interim
orders”
Interim orders can do almost anything…
© GOLDBLATT PARTNERS April 9, 2020 23Employment Insurance – Interim Orders
An interim order can:
Create an entirely new entitlement program
Provide that provisions of the EI Act or
Regulations do not apply in whole or in part
“Adapt” existing provisions to any situation
Apply retroactively to any point in the past
© GOLDBLATT PARTNERS April 9, 2020 24Employment Insurance – Interim Orders
What an interim order can’t do:
Amend parts of the Act related to the calculation
of insurable earnings, the collection of premiums
from employers or benefit repayments
Apply indefinitely
All orders must expire no later than the Saturday after
the first anniversary of being made
No orders can be made after September 30, 2020
© GOLDBLATT PARTNERS April 9, 2020 25Agenda
Leave Entitlements
Employment Insurance Changes
The Canadian Emergency Response Benefit
Emergency Orders
Q&A
© GOLDBLATT PARTNERS April 9, 2020 26Canadian Emergency Response Benefit
A new entitlement meant to provide money to
Canadians quickly, without the complexity of the EI
regime
WARNING
While there have been many press-releases, as
the time of writing this the government has not
released the actual text of the CERB Regulations.
There is relatively little we can say with confidence
© GOLDBLATT PARTNERS April 9, 2020 27CERB – Who can Apply?
CERB is open to any “worker”
A worker is someone who is
At least 15 years old
Resident in Canada (not necessarily a citizen)
Made at least $5000 in 2019 or the 12-month
period immediately before applying for CERB
© GOLDBLATT PARTNERS April 9, 2020 28CERB – What counts towards the $5000?
The money can come from any one or more of the
following sources:
Employment or self-employment income
EI pregnancy and/or parental benefits
Benefits paid under a provincial plan due to
pregnancy or caring for newborn/adoptee
© GOLDBLATT PARTNERS April 9, 2020 29What workers are eligible for CERB?
A worker must meet the following requirements:
They have ceased to work for reasons related to
COVID-19
That ceasing of work has lasted for at least 14
consecutive days
They did not voluntarily quit their employment
They have not received certain payments “in
respect of” those 14 days
© GOLDBLATT PARTNERS April 9, 2020 30What payments disentitle you to CERB?
The following payments cannot be received:
Income from employment
Income from self-employment
Essentially all EI benefits, including
unemployment, pregnancy, parental, sickness,
critical care and compassionate care
Provincial pregnancy/parental benefits schemes
© GOLDBLATT PARTNERS April 9, 2020 31How long to you get CERB for?
CERB is for a 4-week period, which must include
the 14 day period of not working for COVID-related
reasons
A worker may receive a total of 16 total weeks of
CERB
© GOLDBLATT PARTNERS April 9, 2020 32How much do you get under CERB?
Technically we don’t know, as the weekly benefit
amount is set by regulation
All government announcements have consistently
stated the benefit is $2000/month (e.g. $500/week)
© GOLDBLATT PARTNERS April 9, 2020 33When can you apply for CERB?
Applications started this week though the CRA,
Service Canada and the EI Commission
The 4-week period for which a worker gets benefits
must fall between March 15 and October 3, 2020
No new applications can be filed after December 2,
2020
© GOLDBLATT PARTNERS April 9, 2020 34What don’t we know about CERB?
The following rules can be changed by regulation:
The maximum number of weeks a worker can get
CERB payments for
The amount of the CERB payment (either in
general, or for specific classes of workers; either for
all weeks, or for specific weeks)
What does or does not count as income during the
14-week period that disqualifies a person
Who is or is not subject to the requirement not to
earn income during the 14 weeks
© GOLDBLATT PARTNERS April 9, 2020 35What else don’t we know about CERB?
We also don’t have good information about how
CERB and EI interact.
This will likely be dealt with though amendments to
the EI Regulations or the new “interim order”
power
The government has only published changes to
the EI Regulations up to March 11th, two weeks
before the bill that created CERB was published
© GOLDBLATT PARTNERS April 9, 2020 36What has the government said about CERB/EI
Workers can continue to apply for EI, but if they
became eligible for regular/sickness benefits after
March 15, their claim “will be processed thought the
[CERB]”
The period of time during which a worker gets CERB
does not impact their subsequent EI entitlement
If you are already getting EI, you cannot pause it to
get CERB – you will continue with your benefit
period (or maybe the opposite…)
© GOLDBLATT PARTNERS April 9, 2020 37Anything else?
On April 6, 2020 – the first day CERB applications
were processed, the government indicated it would
expand the program to cover:
Persons who work 10 or fewer hours per week,
such as gig workers, contractors and volunteer
firefighters;
Persons who continue to work, but make less
than $500/week
© GOLDBLATT PARTNERS April 9, 2020 38Agenda
Leave Entitlements
Employment Insurance Changes
The Canadian Emergency Response Benefit
Emergency Orders
Q&A
© GOLDBLATT PARTNERS April 9, 2020 39Overview of Emergency Powers
“Emergency powers” can mean different things in
different contexts
Here, we mean special powers that can be
exercised under existing laws that are designed to
respond to emergency situations
© GOLDBLATT PARTNERS April 9, 2020 40Overview of Emergency Powers
Emergency powers are available to the Federal,
Provincial, Territorial and Municipal Governments
(and possibly First Nations)
So far, Federal government has not invoked such
powers (though it has acted under the Quarantine
Act, Aeronautics Act, Railway Safety Act and the
Canada Shipping Act)
© GOLDBLATT PARTNERS April 9, 2020 41Emergency Measures and Civil Protection Act
Ontario exercises emergency powers under the
EMCPA
The Goldblatt Partners website has a detailed
guide to how the EMCPA works, and what it has
been used for in relation to COVID-19
Look for it under the special COVID-19 tab
© GOLDBLATT PARTNERS April 9, 2020 42Emergency Measures and Civil Protection Act
Cabinet has the power to declare an emergency
Emergency must be periodically renewed by the
Legislature or else it lapses
During an emergency Cabinet and the Premier get
special powers, including power to make emergency
orders that prevail over existing laws (but not the
Charter of Rights and Freedoms or the OHSA)
Orders also expire, but can be renewed by Cabinet
(though legislature has power to nullify them)
© GOLDBLATT PARTNERS April 9, 2020 43Emergency Measures and Civil Protection Act
As of April 8th at 5:40pm, Cabinet has issued 25
orders falling into 4 rough categories
1. Orders closing locations & prohibiting activities
2. Orders impacting the operation & management
of certain workplaces
3. Orders relieving persons from complying with
certain legislative requirements
4. “Other” orders
© GOLDBLATT PARTNERS April 9, 2020 44EMCPA Orders – Closing Locations & Events
All public events (including those in private
harms) of more than 5 people prohibited
No person may use any outdoor recreational
amenities intended for use by more than one
family (even if located on private property)
Exceptional powers to clear roadways and
require property owners to store vehicles for that
purpose
© GOLDBLATT PARTNERS April 9, 2020 45EMCPA Orders – Closing Locations & Events
Most well-known order was the closure of “non-
essential” businesses on March 24 (expanded
April 4)
Three parts to order:
List of businesses allowed to operate (now 44)
Rules that such businesses must follow
Exceptions to the requirement to shut down
© GOLDBLATT PARTNERS April 9, 2020 46EMCPA Orders – Closing Locations & Events
Businesses that continue to operate must:
Comply with all advice, recommendations and
instructions from public health officials (including
social distancing, cleaning & disinfecting)
Must, to the extent possible, restrict public
access to places of business and provide
alternative delivery methods of delivery/sale
© GOLDBLATT PARTNERS April 9, 2020 47EMCPA Orders – Closing Locations & Events
Non-essential businesses are required to close
their “place of businesses”
They are not required to cease operations – may
continue to work virtually/online
There are exceptions to closure rule, like
accessing materials/goods/supplies that may be
necessary to allow for continued remote operation
© GOLDBLATT PARTNERS April 9, 2020 48EMCPA Orders – Workplace Management
These are the most significant orders for trade
unions, as they specifically authorize employers to
take a number of steps notwithstanding the terms
of a collective agreement.
Different orders for different specific workplaces.
There can be some subtle differences between
each, so seek advice on your specific sector
© GOLDBLATT PARTNERS April 9, 2020 49EMCPA Orders – Workplace Management
Impacted workplaces:
Hospitals & related health service providers
Long-term care homes
Boards of health
Retirement homes
Service agencies for adults with developmental
disabilities
Water systems & sewage systems operators
The Ministry of Transportation
© GOLDBLATT PARTNERS April 9, 2020 50EMCPA Orders – Workplace Management
All (except MTO) have two main parts:
First, a general power/duty to take all reasonably
necessary measures with respect to deployment and
staffing measures to respond to, prevent and alleviate
the outbreak of COVID-19
Second, a more specific list of examples of steps that
can be taken, notwithstanding collective agreement
provisions including lay-off, bumping or seniority
© GOLDBLATT PARTNERS April 9, 2020 51EMCPA Orders – Workplace Management
Powers include:
Redeploying staff between different work sites
Having non-BU workers do BU work (including
contractors and volunteers)
Changing schedules & cancelling leaves
Collecting information from EEs
Suspending the grievance procedure with respect to
matters that are referred to in the order
© GOLDBLATT PARTNERS April 9, 2020 52EMCPA Orders – Workplace Management
The power to suspend grievance procedure does
not apply to all grievances (even though some
employers think it does)
The power also does not specifically refer to
suspending an arbitration procedure/proceeding
© GOLDBLATT PARTNERS April 9, 2020 53EMCPA Orders – Relief Against Timelines
Order has issues suspending civil limitation
periods & timelines to take steps in proceedings
imposed by law subject to discretion of tribunal
This may be relevant for unions where:
Involved in proceedings before administrative
tribunals (OLRB, HRTO, regulatory colleges)
Under specialized labour-relations regime that
has timelines set out in statute
© GOLDBLATT PARTNERS April 9, 2020 54EMCPA Orders – Other Orders
Range of other orders on variety of topics
including:
Duty of persons to provide personal information
to police enforcing emergency orders
Electronic service of documents on government
in legal proceedings
Information sharing on COVID status of persons
between public health and first responders
© GOLDBLATT PARTNERS April 9, 2020 55EMCPA Orders – Constitutional Considerations
All orders must comply with the Charter of Rights
and Freedoms, including freedom of association
under s. 2(d)
But all Charter rights are subject to reasonable
limits that are demonstrably justified in a free and
democratic society
The existence of a pandemic will be weighed
heavily by courts hearing challenges to orders
© GOLDBLATT PARTNERS April 9, 2020 56Agenda
Leave Entitlements
Employment Insurance Changes
The Canadian Emergency Response Benefit
Emergency Orders
Q&A
© GOLDBLATT PARTNERS April 9, 2020 57You can also read
