Did the Government of New Brunswick pave the way for employees to refuse to work during the State of Emergency?

Clarence Bennett, James LeMesurier, QC and Kathleen Nash

On April 17, 2020, the Legislative Assembly of New Brunswick met for a quick sitting during which two new Bills were introduced and received Royal Assent within half an hour, purportedly in response to the current COVID-19 State of Emergency. One of these Bills, Bill 40 – An Act to Amend the Employment Standards Act, introduces the potential for new protections for workers who are affected by State of Emergency or other similar emergency situations.

The emergency leave idea

While the Employment Standards Act currently provides a number of leaves for workers, none of these are directly applicable to the unprecedented emergency situation currently affecting the province. In response, and following the lead of other provinces, Bill 40 introduced the idea of a new job-protected leave for employees impacted by an emergency situation, such as COVID-19.

Depending on the details of the Order-in-Council, this leave would entitle employees to a leave of absence in any of the following circumstances:

• When the Minister of Public Safety declares a state of emergency under the Emergency Measures Act in respect to all or any area of the Province;
• When the Governor in Council declares a public welfare emergency, a public order emergency, an international emergency or a war emergency under the Emergencies Act;
• When the Governor in Council makes an order under section 58 of the Quarantine Act (Canada);
• In any circumstance relating to:
  • A notifiable disease prescribed by regulation under the Public Health Act or declared to be a notifiable disease in an order of the Minister of Health or the chief medical officer of health;
  • A notifiable event prescribed by regulation under the Public Health Act, or
  • Any other threat to public health.

Bill 40 provides the Lieutenant Governor in Council the power to fix the details of the Emergency Leave in the Regulations. The regulatory power established by Bill 40 includes the power to establish eligibility requirements for the Emergency Leave and the power to make the leave available retroactively when appropriate. It further provides the Lieutenant Governor in Council with the power to determine whether the Emergency Leave will be paid or unpaid.

A unique aspect of the new Emergency Leave provisions is that the Lieutenant Governor in Council must express that it is necessary for employers to grant employees this leave before it will become effective. No other leave under the Employment Standards Act contains this precondition.

The Lieutenant Governor in Council has not yet made any such expression and has not yet introduced any new regulations. Therefore, the new Emergency Leave provisions are not yet effective and, until the Lieutenant Governor in Council expresses an opinion that an Emergency Leave is necessary, employers are not required to provide this leave to employees.

Increased job-protection

Bill 40 further increased the protections for workers who are taking a leave of absence or are taking advantage of any other right or benefit granted under the Employment Standards Act.

Workers are now expressly protected from being suspended, laid off, penalized, disciplined, discriminated against, dismissed or otherwise have their employment terminated if the reason for any of these actions is related in any way to: the employee taking a leave to which they are entitled to under the Employment Standards Act, making a complaint, giving information or evidence against an employer with respect to an alleged violation of any statute or regulation, or for taking advantage of any right or benefit granted to the employee under the Employment Standards Act.

Effect on employers

While the Emergency Leave provisions are not yet in force, employers will inevitably be affected if the provisions become effective. As the details of the Emergency Leave have yet to be determined, it is difficult to predict the employees who will be eligible for the leave and therefore difficult to predict the extent to which employers will be effected.

It appears that the intention of the new amendments is to require employers to grant employees leaves of absences to those who request them during the declared State of Emergency. As the Lieutenant Governor in Council has the power to make the Emergency Leave retroactively effective, this could potentially result in a number of requests for leave and may require employers to reconsider the situation of employees who have voluntarily left their employment in recent weeks.

Currently, if an employee voluntarily leaves their position without valid safety or medical excuse, an employer is free to replace them with a new hire. However, with the introduction of the new Emergency Leave and the increased job-protection, employers may be faced with maintaining the positions of employees who have taken an Emergency Leave and may be left with vacant positions that cannot be filled – despite the fact that work is available and can be performed safely.

The introduction of the Emergency Leave and the increased protections for workers will be particularly problematic for employers of employees in minimum wage positions. Currently, it appears employees are calculating the difference between the benefits provided under the Employment Insurance Act and evaluating whether to continue to work.

As the federal government has waived some of the eligibility requirements for Employment Insurance Benefits, it is easier for employees to qualify. This is making Employment Insurance Benefits even more attractive to minimum wage employees and leaving employers to deal with many employees voluntarily leaving their positions.

Lastly, Bill 40 also gives the Lieutenant Governor in Council the regulatory power to determine whether the Emergency Leave will be paid or unpaid. As all other leaves under the Employment Standards Act are unpaid, we believe it is unlikely the Emergency Leave will be paid. However, employers should be aware that this remains a possibility.

Summary

While Bill 40 is likely to be welcomed by employees, it is problematic for employers who are struggling to maintain a labour force and planning staged back to work protocols.

The actual impact of Bill 40 will become more apparent (if and when) the Lieutenant Governor in Council announces that the Emergency Leave provisions are necessary and exercises her regulatory power to establish the eligibility requirements for the Emergency Leave.

This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.

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