Prime Minister Trudeau announced on Monday that he will be pushing the provinces to allow workers up to 10 days paid sick leave during the wake of COVID-19 pandemic. Trudeau reportedly made the announcement in order to secure the New Democratic Party’s support for a motion to limit sittings and votes in the House of Commons through the summer.
For most employees in Canada, however, the notion of 10 days paid sick leave will remain a fantasy. Legislating paid sick leave for employees is constitutionally allocated to provincial governments. As a result, the Federal government has no jurisdiction to enact this legislation, save and except those employees in industries covered under the Canada Labour Code (banking, aviation, telecommunications, inter-provincial trucking or shipping, military, etc.).
In 2018, Ontario’s government under Premier Kathleen Wynne enacted legislation amending the Employment Standards Act, 2000 (“ESA”) to afford 10 sick days to employees, two of which were paid. The following year, Premier Doug Ford’s government repealed the amendments, such that all ten sick days were to be unpaid. Given this history, it is highly unlikely that the bulk of Ontario-employees will see a manifestation of Prime Minister Trudeau’s plan.
As of March 29th, a survey of the bar and restaurant industry found that 10% (or 9,750) of the nation’s bars and restaurants had permanently shut down due to the COVID outbreak, and that thousands more were at risk if the pandemic prolonged. This demise is not limited to the restaurant industry, with many small businesses unable to weather the storm.
Small businesses struggling to stay afloat will consequently be forced to pay out wages for inactive service. The financial burden will inevitably be passed onto other employees in the form of paycuts and fewer hiring opportunities, or onto the consumer in the form of higher prices. To the extent that mandatory paid sick leave is captured under the Canadian Emergency Response Benefit (CERB), then it is the future generations who will be stuck with the bill.
Employees in Ontario are presently entitled to ten unpaid sick days under the ESA. Similarly, a COVID-19 infection constitutes a “disability”, thereby garnering the anti-discrimination protections of the Human Rights Code. The Occupational Health and Safety Act prohibits employers from forcing a potentially sick employee to return to work and requires employers to ensure a safe workplace.
As the federal government discusses the possibility of implementing 10 days paid sick leave across Canada, Prime Minister Trudeau’s plan can best be described as myopic.
With years of experience in this ever-changing area of law, we at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you’re looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.
Author: Marc Kitay
Marc Kitay is a partner at Whitten & Lublin, and specializes in providing small businesses with cost-effective solutions to difficult problems.