Skip to content

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.

Click here to subscribe to Stewart McKelvey Thought Leadership articles and updates.

SHARE

Archive

Search Archive


Generic filters

 
 

SVILA E-Discovery

March 5, 2013

Stewart McKelvey’s Vision Improving Legal Analysis (SVILA*) is an e-discovery project and litigation management tool. For more information on our e-discovery services, download the SVILA e-discovery document.

Read More

Doing Business in Atlantic Canada (Spring 2013)(Canadian Lawyer magazine supplement)

March 5, 2013

IN THIS ISSUE: A New Brunswick business lawyer’s perspective by Peter Klohn Why Canada’s immigration rules matter to your business by Andrea Baldwin Financing Energy Projects during the Project Lifecycle by Lydia Bugden, Colm St. Roch Seviour and Tauna Staniland Download…

Read More

Client Update: Valentine’s Day @ the Workplace

February 14, 2013

Yellow diamonds in the light And we’re standing side by side As your shadow crosses mine What it takes to come alive It’s the way I’m feeling I just can’t deny But I’ve gotta let…

Read More

Client Update: Nova Scotia Contaminated Site – Ministerial Protocols

January 11, 2013

INTRODUCTION On December 6, 2012, The Nova Scotia Department of Environment (NSE) released Draft Ministerial Protocols (the “Draft Protocols”) related to contaminated sites. The release of the Draft Protocols has been eagerly anticipated. The adoption…

Read More

Client Update: Changes to the Rules of the Supreme Court

January 3, 2013

Recent changes to the Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D On December 14, 2012, several changes were made to the Rules of the Supreme Court. These changes include: who may act…

Read More

Doing Business in Atlantic Canada (Winter 2012) (Canadian Lawyer magazine supplement)

January 1, 2013

IN THIS ISSUE: Putting Trust in your Estate Planning, by Paul Coxworthy and Michael McGonnell The Risks, for Insurers in Entering Administration Services Only (ASO) Contracts, by Tyana Caplan Angels in Atlantic Canada, by Allison McCarthy, Gavin Stuttard and Adam Bata…

Read More

Client Update – Changes to the Human Rights Legislation in Newfoundland and Labrador

July 13, 2010

Bill 31, An Act Respecting Human Rights, came into force on June 24, 2010 replacing the Human Rights Code (the “Code”). For more information, please download a copy of this client update.

Read More

Atlantic Business Counsel – December 2009

December 18, 2009

IN THIS ISSUE Expanded Fines and Penalties for Environmental Offences: The New Federal Environmental Enforcement Act Spam about to be Canned? Preparing a Business for Sale Business Disputes Corner – Place of Arbitration and Selected…

Read More

Client Update – General Damage Cap Upheld By the Nova Scotia Court of Appeal

December 15, 2009

The Nova Scotia Court of Appeal has unanimously upheld the province’s legislative limits on general damage recovery for “minor injuries”. Today’s decision, authored by Chief Justice Michael MacDonald, completely affirms the January 2009 decision of…

Read More

Client Update – New Planning Opportunities For ULCs

December 4, 2009

The Canada Revenue Agency (“CRA”) announced helpful administrative positions concerning the new rules under the Fifth Protocol to the Canada-US Income Tax Convention, 1980 which will come into effect on January 1, 2010. The CRA…

Read More

Search Archive


Generic filters

Scroll To Top