Lifting of Covid-19 Restrictions: Time to Revisit the Employment Standards Covid-19 (Leave) Regulations, Alberta Regulation 29/2020?
With the outbreak of the Covid-19 virus, governments have raced to implement measures to manage the spread of the virus. These measures have included mandatory quarantine requirements, self-isolation, wearing masks in public places etc. The mantra has been: “let the science lead the way.” Scientists are now telling us that we must live with the virus. That leaves me wondering about the laws and regulations legislatures have passed in response to the virus.
In Alberta, the Employment Standards Covid-19 (Leave) Regulation, Alta 29/2020 (the “Covid-19 Leave Regulation”), is one of the laws that the provincial legislature passed in response to the virus.
The Covid-19 Leave Regulation grants a 14-day unpaid leave to an employee in quarantine (quarantine includes self-isolation and self-quarantine) because of Covid-19. Under the Covid-19 Leave Regulation, employers are prohibited from terminating an employee on Covid-19 leave, thereby creating a new category of protected-job leave. So far, so good – it seems reasonable that in the interest of public health, a person infected with Covid-19 should not expose others to the virus.
However, some provisions in the Covid-19 Leave Regulation need reconsideration, especially now that the medical direction is that we must learn to live with the virus and restrictions are being lifted. For example, the Covid-19 Leave Regulation creates an exemption to section 53.97 of the Alberta Employment Standards Act whereby an employee does not need to provide a medical certificate or a copy of a medical certificate to their employer evidencing their Covid-19 status. Similarly, the Regulation exempts employees under quarantine from the need to notify their employer of the date they may return to work. This is where it gets tricky: an employee who does not feel like going to work for the next two weeks can notify their employer that they have COVID-19 and stay home for two weeks. They do not need proof of their covid-19 status or indicate when they intend to return to work.
If we are to live with Covid-19 long-term, this provision can be detrimental to businesses and should be revisited. For one thing, an amendment that requires employees to provide evidence of their Covid-19 status is necessary to prevent abuse.
Other questions that have engaged my mind about the Covid-19 Leave Regulations include:
Can an employer terminate a probationary employee on Covid-19 leave?
Is actual knowledge of an employee’s Covid-19 status required? In other words, can an employer successfully mount a defence of not knowing the Covid-19 status of the employee when the employee was terminated?
What if the reason for the termination is not related to the employee being on covid-19 leave - must the employer wait for the employee to return from covid-19 leave before the employee is terminated?
These questions are likely to come before the Alberta Employment Tribunal and Courts. Given that the policy objective of the Employment Standards Act and its Regulations is to protect employees, employers will be well-served to tread cautiously.