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New Employment Standards Leaves for COVID-19 & Their Impact on Pension & Benefit Plans  

by Meghan Popp, Sophia Ma

Published: November, 2020

Submission: November, 2020

 



In response to COVID-19, the federal government and the provinces have introduced various measures to mitigate the financial impact across the country. One of these measures is the introduction of a new type of type of unpaid, job-protected leave related to COVID-19.


As of the date of this bulletin, BC, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island, Newfoundland, and the federal government have introduced these new leaves.[1] This bulletin sets out the issues that pension and benefit plans and participating employers should be aware of in respect of these new leaves. It also summarizes the important aspects of these new COVID-19 leaves by province.


We will update this page as new legislation is introduced, so please check back for the latest developments.


New Unpaid, Job-Protected Leaves related to COVID-19


  • British Columbia - On March 23, 2020, British Columbia added a new category of unpaid leave to the Employment Standards Act (BC) - the COVID-19 related leave.[2]
  • Alberta - On March 17, 2020, Alberta also introduced a new unpaid leave related to COVID-19.[3] On April 6, 2020, Alberta introduced a “caregiver leave” to broaden the scope of its COVID-19 leave.[4] On June 17, 2020, Alberta introduced the “family leave,” which is similar to the “caregiver leave,” and will take effect after the “caregiver leave” lapses on August 14, 2020. The “family leave” will expire on August 14, 2021.[5]
  • Saskatchewan - On March 17, 2020, Saskatchewan introduced a new “public health emergency leave”. This leave is available if (a) a public health emergency has been declared by the World Health Organization and the chief medical health officer has also issued specific orders relating to the public health emergency or (b) if the chief medical health officer has issued an order declaring that a disease present in Saskatchewan is harmful to the public health and individuals in Saskatchewan must take measures to prevent or reduce the spread of the disease.[6]
  • Manitoba – On April 15, 2020, Manitoba amended the Employment Standards Code (Manitoba) to provide for a new public health emergency leave.[7] On October 28, 2020, Manitoba expanded the eligibility requirements for its public health emergency leave.
  • Ontario - On March 19, 2020, Ontario amended the emergency leave provisions in the Employment Standards Act (Ontario) to provide for new leaves relating to infectious diseases and declared emergencies (e.g. COVID-19).[8] On May 29, 2020, Ontario introduced new measures to create a deemed infectious disease emergency leave (the “Deemed Leave”) for workers whose hours are temporarily reduced or eliminated by employers for reasons related to COVID-19.[9] On September 3, 2020, Ontario extended the Deemed Leave period.[10]
  • New Brunswick – On April 17, 2020, New Brunswick amended the Employment Standards Act (New Brunswick) to provide for new “emergency leave” provisions. Under these new provisions, New Brunswick introduced the COVID-19 emergency leave by regulation on April 23, 2020.[11]
  • Prince Edward Island – on June 18, 2020, Prince Edward Island amended the Employment Standards Act (Prince Edward Island) to create an emergency leave of absence.[12]
  • Newfoundland – On March 26, 2020, Newfoundland amended the Labour Standards Act (Newfoundland) to create a new “communicable disease emergency leave.”[13]
  • Federal - On March 25, 2020, the federal government amended the Canada Labour Code to create a COVID-19 leave.[14] On October 2, 2020, the federal government passed legislation amending the reasons for which COVID-19 leave can be taken, and the length of the COVID-19 leave. Any period of leave taken by an employee before the new legislation came into force does not count toward the new leaves.

Considerations for Pension and Benefit Plan Administrators and Participating Employers


  • Are employers required to continue to make contributions to pension and benefit plans while an employee is on a COVID-19 leave?

British Columbia – Like any other leave under Part 6 of the Employment Standards Act (BC) (such as maternity leave or jury duty), if an employee is on a COVID-19 leave, the employer must continue to make contributions to pension and benefit plans as though the employee is not on leave. If the employee normally makes contributions to the plan and chooses to continue to do so during the leave, then the employer must also continue the employer contributions.


Alberta - Alberta employers are generally not required to continue contributions to benefit plans during unpaid job-protected leave. There is no exemption from this rule for COVID-19 leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans.


Saskatchewan - In Saskatchewan, an employee continues to participate in benefit plans[15] while on leave if the employee continues to pay the contributions required by the benefit plan. In the case of a public health emergency leave, the Saskatchewan Employment Act specifically provides that employees are entitled to be paid their regular wages and benefits if the employee is (1) authorized by his/her employer to work at home during the public health emergency and (2) complies with the measures set out by the chief medical health officer, and any other order by the government relating to the public health emergency.


Manitoba – In Manitoba, the Employment Standards Code does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new public health emergency leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans. However, since employment is deemed to be continuous, the employee’s years of service will include the period of leave.


Ontario - In Ontario, during any leave, including an emergency or infectious disease leave, the employee continues to participate in pension, life insurance, extended health, dental, accidental death plans, and any other prescribed plans unless the employee elects in writing not to do so. During such a leave, an employer must continue to make the employer’s contributions for any of the above plans unless the employee gives written notice that they do not intend to pay their contributions, if any. If an employee on Deemed Leave has stopped participating in a benefit plan as of May 29, 2020, he or she is exempt from benefit continuation requirements during the Deemed Leave period. Similarly, if an employer of an employee who is on Deemed Leave has stopped making contributions to a benefit plan as of May 29, 2020, the employer is exempt from benefit continuation requirements during the Deemed Leave period.


New Brunswick – In New Brunswick, the Employment Standards Act does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new COVID-19 emergency leave. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans. However, since employment is deemed to be continuous, the employee’s years of service will include the period of leave.


Prince Edward Island – An employer is not required to continue to make contributions to the employee’s pension or other benefit plans during the new emergency leave. Whether or not contributions are required during the emergency leave will depend on the specific terms of the employers’ plans.


Newfoundland – In Newfoundland, the Labour Standards Act does not require employers to continue to make contributions to the employee’s pension or other benefit plans. There is no exception for the new communicable disease leave. The Labour Standards Act states that unless otherwise agreed upon by the employer and employee, a communicable disease leave does not count towards the application of the rights, benefits, and privileges under the statute. Whether or not contributions are required during unpaid leave will depend on the specific terms of employers’ plans.


Federal - The pension, health, and disability benefits of the employee continue to accumulate during the entire period of the leave. Employers must continue to pay any contributions related to these benefits during COVID-19 leave unless the employee does not pay the employee’s contributions.


  • Are changes required to your pension and benefit plan documents?

Pension and benefit plan documents often make reference to different types of leaves that employees may take. For instance, pension plans often define the types of leaves that will count toward pensionable service. In some cases, a plan might list the specific types of leave (i.e. maternity leave, parental leave, jury duty).


Plan administrators should consider reviewing their plan documents in respect of their description and treatment of statutory leaves of absence, such as the new COVID-19 leaves. Amendments may be needed to ensure that all applicable leaves, including the new COVID-19 leaves, are dealt with in a manner that is compliant with the applicable employment standards legislation.



Click here to see a Summary of COVID-19 Leaves Across Canada


If you have any questions about these new leaves of absence, or how to handle the impact of COVID-19 in pensions, please contact any member of the Lawson Lundell Pensions & Benefits Group


NOTE: Due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, please understand that any blog posts written in the past may not reflect the current applicable obligations, rights and benefits of employers and employees. 


 


Footnotes:

[1] British Columbia - Bill 16, Employment Standards Amendment Act (No. 2) 2020; Alberta - Employment Standards (COVID-19 leave) Regulation, Alberta Reg. 29/2020; Saskatchewan - Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020; Manitoba - Bill 55, The Employment Standards Code Amendment Act; Ontario - Employment Standards Amendment Act (Infectious Disease Emergencies), 2020; Federal - Bill C-13, An Act respecting certain measures in response to COVID-19.


[2] Bill 16, Employment Standards Amendment Act (No. 2) 2020.


[3] Employment Standards (COVID-19 leave) Regulation, Alberta Reg. 29/2020.


[4] Alberta Ministerial Order 18/2020.


[5] Alberta Order in Council 181/2020.


[6] Bill 207, The Saskatchewan Employment (Public Health Emergencies) Amendment Act, 2020, amending The Saskatchewan Employment Act.


[7] Bill 55, The Employment Standards Code Amendment Act.


[8] Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which amended the Ontario Employment Standards Act. Ontario also filed Ontario Regulation 66/20 on March 19, 2020 which designated COVID-19 as an infectious disease.


[9] Regulation 228/20, Infectious Disease Emergency Leave, filed under the Employment Standards Act (Ontario)


[10] Regulation 492/20: Infectious Disease Emergency Leave, filed under the Employment Standards Act (Ontario)


[11] Bill 40, An Act to amend the Employment Standards Act; Regulation 2020-29 under the Employment Standards Act


[12] Bill 38, An Act to amend the Employment Standards Act (No. 3)


[13] Bill 33, COVID-19 Pandemic Response Act. On March 27, 2020, Newfoundland filed Newfoundland and Labrador Regulation 22/20, which designated COVID-19 as a communicable disease.


[14] Bill C-13, An Act respecting certain measures in response to COVID-19.


[15] The Saskatchewan Employment Standards Regulation defines “benefit plan” as including a medical plan, a dental plan, a disability or life insurance plan, an RRSP, a pension plan, or an accidental death or dismemberment plan.



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