Murray Murphy, QC, CPHR and Kate Jurgens

Three new bills have been introduced in the most recent sitting of the Prince Edward Island legislature. In the employment setting Bill 38 aims to address the prevalence of emergency leave in the context of the COVID-19 pandemic and beyond, while Bill 114 address protections to be provided to whistleblowers. In the labour context, Bill 43 is set to introduce first contract arbitration to Prince Edward Island.

Bill 38 – emergency leave

Emergency leave is now available for workers in Prince Edward Island who are unable to work as a result of COVID-19. An Act to Amend the Employment Standards Act (No.3) received Royal Assent on June 18, 2020 and became effective retroactive to March 16, 2020.

Prior to this legislation being introduced, Islanders were able to access only two forms of leave – four (4) days of unpaid leave plus one (1) day of paid leave or three (3) days of unpaid sick leave. Further, these two types of leave were only available to employees with at least five years’ service with their employer.

Emergency leave

In light of the COVID-19 pandemic, the Employment Standards Act (“Act”) has been amended to address emergency leave. Under the amended legislation, in an emergency, as defined under the Act, an employee is entitled to an unpaid emergency leave of absence for the duration of the time in which the employee is unable to perform the duties of their position as a direct result of the emergency.

Emergency leave will apply only as part of a provincially-declared emergency. Personal emergency will not constitute an emergency under this Act.

“Family members”, in respect of an employee, are defined as members of their immediate or extended family, including a niece, nephew, foster parent, ward, or guardian of the employee, or any person the employee considers to be in one of the aforementioned categories.¹

When an emergency is declared (as newly defined in the Act and described above), it will apply to a family member of the employee where:²

(a) The emergency directly applies to the family member of the employee;
(b) The emergency results in a situation where the family member of the employee requires care or assistance;
(c) the employee is the only person reasonably able in the circumstances to provide the family member with the required care or assistance; and
(d) providing the required care or assistance to the family member has the effect of preventing the employee from performing the employee’s work duties.

Now, when an emergency as defined under the Act arises, an employee is entitled to an unpaid leave of absence for the duration of the time when the employee cannot perform the duties of their position directly as a result of the emergency. This situation will arise when:³

(a) The employee is in isolation or quarantine, or is subject to a control measure, including self-isolation, where such a measure was issued by the Chief Public Health Officer in relation to a disease under the Public Health Act.
(b) The employer is concerned the employee may expose other persons in the workplace to a communicable disease, or
(c) The employee is out of the province and is affected by travel restrictions related to a communicable disease and cannot reasonably be expected to return to the province.

Notice

If an employee finds themselves unable to work for any of the above listed reasons, they are required to provide their employer with as much notice as is reasonably possible of their intention to take an emergency leave. If this is not possible and the employee must leave before providing notice to their employer, they are required to advise their employer as soon as possible after leave commences.

An employer is entitled to request evidence that such relief is in fact reasonable in the circumstances and that the employee is entitled to such emergency leave.

Job security

Emergency leave will continue for the duration of the emergency so long as it continues to prevent the employee from performing their work duties. In the event the employee is able to perform their work duties as a result of a change in circumstances (i.e. their period of self-isolation is over or they have found child care), they are not able to continue with this unpaid leave of absence.

Upon their return to work following emergency leave, the employee will resume the position they held with the employer immediately before the emergency leave began. In the event this position no longer exists, they will assume a comparable position with the same or greater pay and benefits that they would have received had they not taken the emergency leave of absence.⁴

Child care concerns

Emergency leave is available to any employee who is without childcare if there is a public health directive affecting schools or childcare that directly impacts an employee’s ability to obtain childcare AND the employee is the only person reasonably able to provide the care needed. Unless both conditions are met, the employee will not be able to avail themselves of this emergency leave.

Because the Child Public Health Officer has directed that childcare centers on PEI are not able to operate at full capacity at this time, an employee can utilize emergency leave if they are without childcare.

In determining whether emergency leave is available in the context of childcare, an employee should ask (1) whether childcare is unavailable as a result of public health directives, and (2) if so, whether the employee is the only person reasonably able to provide the child care needed.

Bill 114 – whistleblowers

Whistleblowers will now have added protections afforded to them. An Act to Amend the Employment Standards Act (No.4) received Royal Assent July 14, 2020, effective as of the same date.

These amendments prohibit an employer from taking any reprisal or discriminating against an employee, or threatening to do so, for reporting an offence to a lawful authority or testifying in an investigation or proceeding pursuant to a provincial or federal Act, except where the actions of the employee are frivolous or vexatious.

Significance of whistleblower protections

Whistleblower protection is essential in promoting a culture of accountability and integrity in the workplace. Employees are typically the first to recognize wrongdoing in the workplace and through allowing whistleblowers to speak up without fear of reprisal this legislation can help authorities both detect and deter violations while affording those bringing the complaints forward with some measure of job security.

Bill 43 – first contract arbitration

An Act to Amend the Labour Act went through first reading on June 25, 2020. The proposed changes are significant insofar as they introduce first contract arbitration, that is to say disputes that arise prior to the signing of a first collective agreement.

First contract arbitration allows the parties in an unsuccessful negotiation to apply to the Labour Board to direct the settlement of a first collective agreement. In the event that a dispute relating to concluding a first collective agreement has not been resolved, parties to the dispute can apply for assistance in settling the terms and conditions of the first collective agreement.⁵

In order to resolve such a dispute, the Board is provided with a number of options, among which are:

• directing each party to provide its final proposal;
• direct parties to continue collective bargaining and place conditions thereon;
• appoint a mediator to assist the parties in resolving the dispute; or
• provide other direction or supervise or conduct any votes that may be appropriate in the circumstances.

Where the Labour Board’s attempts to resolve the dispute are unsuccessful, they may direct that the dispute be resolved by arbitration and a prescribed arbitration process.

Impacts on collective bargaining

The imposition of first contract arbitration in collective agreements discourages cooperative efforts to develop constructive collective bargaining processes.

A union focused on first contract arbitration has little incentive to compromise before arbitration. From the employer’s perspective, engaging in arbitration is a risk as an outsider with no knowledge of the organization will decide the terms and conditions of the employment.

The negotiation process involved in a collective agreement fosters a strong foundation for employer-employee relations. The parties will leave the negotiation process with an understanding of the terms of the agreement and the expectations of the other party. With an insight into the industry in which the parties are collectively involved, the parties themselves are best positioned to decide the terms of the agreement and what they are prepared to do in order to achieve them.

¹ Ibid., s. 22.5(1)(b)
² Ibid., s. 22.5(2)
³ Ibid., s. 22.5(4)
⁴ Ibid., S.P.E.I. 2020, c. 42, s. 22.5(8)
⁵ Labour Act R.S.P.E.I. 1988, Cap. L-1, s. 34.2

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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