COVID-19 PAID LEAVE DAYS: AN OPPORTUNITY FOR UNIONS?

Increasingly provinces are introducing legislation to provide paid vaccination time and other COVID-19 related leaves. We have analyzed the updated legislation and look at how unions can use the new leave benefits to extend existing workers’ protections.

Ontario 

Ontario offers one of the most comprehensive paid leave regimes. Under the newly introduced legislation, most employees can take up to three (3) paid days of leave (paid infectious disease emergency leave “PIDEL”) to:

  • get vaccinated, recover from its effects, be under investigation, supervision or treatment for COVID-19, to quarantine or isolate, stay at home when directed by the employer that the employee creates an exposure risk, or to take care of a close family member in similar circumstances.

The employee is not required to produce a certificate from a qualified health practitioner; however, they may be required to produce at a reasonable time “reasonable proof” of their entitlement to PIDEL.

The legislation technically provides that employees on PIDEL shall be paid their ordinary wage (regardless of higher rates for specific days or times of day), however, those wages are limited to a maximum of $200/day. At this point in time employers do not bear any financial burden, as they will be reimbursed by the Ontario government.

Similar to other provinces, PIDEL in Ontario is temporary and is only available from April 19th until September 25th 2021. Nevertheless, this legislation may provide unions with an opportunity to seize these enhanced rights, ensuring that paid leave days for vaccinations, quarantine or similar circumstances are incorporated into their collective agreement.

Are unionized employees able to claim PIDEL in addition to their existing collective agreement benefits?

Union members generally enjoy far greater protections than the minimum standards provided by the Employment Standards Act (“ESA”). As such, when new statutory protections are added to the ESA, if the union believes that these rights are better than what is outlined by their collective agreement, the union may argue that the ESA applies notwithstanding the collective agreement. This comparison is commonly known as a “greater right or benefit” analysis.

To identify and determine which rights under PIDEL you can fight to incorporate into your collective agreement, unionized employees will have to go through the following steps:

STEP 1Determine which provisions of the collective agreement directly relate to the same subject matter as PIDEL

To do this, unions should locate all the provisions of the collective agreement entitling employees to a leave and consider which would be most analogous to PIDEL.

Medical, sick and family leaves– medical or sick leaves can be taken when an employee has contracted COVID-19, is required to isolate, undergo treatment or has a medical appointment for a vaccination. Family leaves may apply when an employee needs to take time off to take care of a family member due to COVID-19. Since these leaves are similar to PIDEL, the only way for unions to qualify for PIDEL is to prove that the terms of these leaves are more restrictive, than PIDEL’s.

Weekly Indemnity– this type of pay does not typically apply to short-term leaves, e.g. for vaccination, however, it might be relevant for longer-term leaves, such as 14-day quarantine.

Floating days– technically, floating days can be taken for any of the PIDEL reasons. That being said the case law suggests that an employer may not use floater days as sick or emergency leave, as this would decrease the number of employee’s paid leave days and floating days generally have a holiday purpose, different from emergency leaves.

STEP 2Weigh the relative benefits of PIDEL and the leaves under the collective agreement

For unions to rely on PIDEL, they will have to show that it is less restrictive than leaves under the collective agreement. When assessing the restrictiveness of different leaves, Arbitrators in the past have considered the following factors:

The breadth of the employment standard and the frequency with which it may be claimed– PIDEL appears to be quite broad, however, it is limited to COVID-19-related circumstances, therefore, a broadly defined personal emergency leave that may cover both COVID-19 and non-COVID-19 issues may be considered more favourable.

Requirements for eligibility– unlike most of the medical or sick leave days, PIDEL does not require any amount of prior work experience, is not contingent on any other criteria and applies to all employees, which may make it more beneficial than some contractual leaves. For example, when probationary employees were provided less rights under a collective agreement, they were entitled to personal emergency leave days provided for in the employment legislation.

Number of days of notice– PIDEL does not require giving any notice, whereas most floating days come with significant notice period and some collective agreements may stipulate more complicated schemes of arranging medical, family or personal emergency leave that would be more restrictive than PIDEL.

Application process– the process of obtaining PIDEL is extremely simple: you take it when you need it and you provide “reasonable evidence” (which does not require a health practitioner certificate) at a “reasonable time”. This could be significantly easier than applying for leave in other contractual arrangements that may call for medical certificates, for example.

If unions succeed in proving that their collective agreement does not offer greater benefits, PIDEL will apply to those unionized employees, similar to some cases concerning statutory personal emergency leaves. In one instance, the Arbitrator ruled that employees were entitled to statutory two paid leave days, since it could be taken for a broad range of reasons, which are likely to occur in a given year (such as family or personal emergency), as opposed to more unlikely contractual bereavement leave or long-term disability. In another case, statutory leave days were deemed to be more preferential, since they could be taken for a broader range of reasons and were not under the discretion of the employer, even though the total number of days was greater under the collective agreement.

What About the Other Provinces? 

In British Columbia (“BC”) employment legislation provides a maximum of three (3) paid hours of leave for each vaccination with an additional three (3) paid days of leave if an employee is diagnosed with COVID-19, has to quarantine or self-isolate, or was directed not to work due to exposure concerns. Note that this list does not include recovery from vaccine side effects, taking care of children or other family members, as in Ontario.

In Alberta, Saskatchewan and Manitoba employees can only get three (3) paid hours of leave for each vaccination shot. In Alberta and Saskatchewan the employers may, but do not have to, provide a longer paid leave period. No paid leave for recovery from vaccinations is envisaged.

Employer’s discretion to provide leave for COVID-19 reasons (“Voluntary Leave”)

Several provinces and territories have enacted voluntary leave programs, encouraging employers to grant paid leave days for COVID-19-related reasons by reimbursing their expenses. However, due to strict terms of eligibility for reimbursement, it is likely that these programs will be entirely irrelevant for unionized workers.

In Manitoba the employers may grant up to five (5) paid days of leave for COVID-19 vaccinations and recovery, as well as to get tested for COVID-19, self-isolation or taking care of a loved one in such circumstances. Employers may get up to $600/employee for up to five (5) days, unless they already provide five (5) days of paid sick leave days to their employees (even if the paid leave days have already been used up).

In Nova Scotia and Prince Edward Island the governments also introduced voluntary paid leave for workers who miss less than 50% of their scheduled work time in a one-week period because of COVID-19 (and cannot work remotely for Nova Scotia). The employees may use the paid leave to get vaccinated or tested for COVID-19, and in Prince Edward Island, in case of illness or requirement to self-isolate. The employers may get reimbursed up to $20/hour or $160/day.

However, employers will not be reimbursed for employees who already have paid sick leave under their employment agreement (even if all the sick leaves have been used) or for employees who receive any other benefits through COVID-19 income replacement or insurance programs.

In Yukon there is no vaccination leave, however, their Paid Sick Leave Rebate is one the most generous across all Canada, albeit voluntary. employees may get up to ten (10) paid days of leave (compared to three (3) in Ontario) in case of sickness, self-isolation or for taking care of household members. Employers may get up to $378.13/day per employee (compared to $200 in Ontario and $160 in Nova Scotia) for a maximum of 10 days. The eligibility requirements are less strict than those in Nova Scotia and Prince Edward Island and only require that the employers must be Yukon-based and that all the employees’ existing paid sick leave is used.

To summarize, although the voluntary programs appear to provide more paid leave days than programs in Ontario and BC, their practical value seems to be limited, since they rely on employers’ discretion to provide paid leave and enforce strict eligibility criteria.

Federal Programs 

On a federal level, the government enacted several programs, providing benefits for when you cannot work at least 50% of your scheduled work week because of COVID-19. Through Canada Recovery Sickness Benefit you can get up to $450/week (which translates into $90/working day and is significantly less than through provincial programs) for up to four (4) weeks, if you have to self-isolate. Similarly, Canada Recovery Caregiving Benefit allows employees to get up to $450/week for maximum of 38 weeks for taking care of a family member who is at home due to COVID-19.

These benefits may be accessed, even if your contract already stipulates paid leave, as long as you do not access this paid leave in the same period, as the federal benefits. Thus, unionized members technically may be able to claim these federal benefits, instead of their contractual benefits, although it is likely that their collective agreements will offer a much better bargain.

Conclusion

Canada has been creative in their response to the pandemic, with some government bodies introducing mandatory paid sick leave, others only allowing three (3) hours to get vaccinated and some enacting voluntary programs with financial reimbursements for employers who participate.

Although the government bodies have taken a step in the right direction through the implementation of sick days, the scope of these measures remains limited, the programs are temporary, some are voluntary relying on the employer’s discretion to act fairly, and the eligibility criteria is far too strictly construed. There are also provinces and territories that have not enacted any paid vaccination or COVID-19 related leaves. The government’s “action” certainly prompts the proposition of protect or pander.

Despite all this, it might be possible to use the new leave benefits to extend existing workers’ protections. Contact us for personalized assistance and analysis of your collective agreement to see if your union can benefit from COVID-19 paid leave programs.

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