CUPE 4000 Membership Bulletin concerning changes related to COVID19 from legal counsel
Because of the many changes that have occurred to employment legislation recently due to the COVID19 health crisis, we have produced a summary for members of these changes, along with some FAQ’s at the conclusion. All of the documents referred to are available below and we encourage members to read the documents, understand your rights and keep informed in a quickly changing time.
TOH Q & A
First, we have received a Q and A from the Ottawa Hospital which addresses how absences related to COVID will be coded, both for full-time employees and for part-time and casual employees. The Q & A was sent to the union by the Hospital. We encourage you to read it carefully. Members will see that part-time and casual employees who are not normally entitled to paid sick leave, will be paid sick leave for any absence between March 15 and April 5, 2020 inclusive for suspected or confirmed cases of COVID19. Hospital payments to part-time and casual employees end on April 5, 2020 and afterward any part-time employee or casual who does not qualify for sick leave can apply, if eligible, to the federal government for benefits, including Canada Emergency Response Benefit (‘CERB’) which is discussed below. Here are the federal benefits for which an employee can apply. https://www.canada.ca/en/department-finance/economic-response-plan.html
CANADA EMERGENCY RESPONSE BENEFIT (CERB)
Employees who involuntarily cease employment because of COVID19 are entitled to apply to the Canada Revenue Agency (CRA) to receive CERB payments of up to $2000 per month. This is an entirely new benefit and applications can be made on the CRA website beginning April 6, 2020. If you plan on applying for CERB and are not registered on the CRA website you should register now rather than waiting until April 6, as this may speed up processing. Employees who would normally be entitled to apply for EI, remain entitled to EI payments. Once again, application for this benefit must be made on the CRA website.
INFECTIOUS DISEASE EMERGENCY LEAVE
The Province of Ontario has amended the Employment Standards Act to provide for unpaid leave for employees in emergency circumstances arising from the COVID19 outbreak. The circumstances giving entitlement to the leave are as follows:
- The employee is under medical investigation, supervision or treatment for COVID-19.
- The employee is acting in accordance with an order under the Health Protection and Promotion Act.
- The employee is in isolation or quarantine in accordance with public health information or direction.
- The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.
- The employee needs to provide care to a person for a reason related to COVID- 19 such as a school or day-care closure.
- The employee is prevented from returning to Ontario because of travel restrictions.
The list of affected family members for whom a COVID19-related leave is available to provide care is lengthy and set out here.
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee or the employee’s spouse.
- A child, step-child or foster child of the employee or the employee’s spouse.
- A child who is under legal guardianship of the employee or the employee’s spouse.
- A brother, step-brother, sister or step-sister of the employee.
- A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
- A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
- A son-in-law or daughter-in-law of the employee or the employee’s spouse. An uncle or aunt of the employee or the employee’s spouse.
A nephew or niece of the employee or the employee’s spouse.
The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
- A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
- Any individual prescribed as a family member for the purposes of this section.
Finally, in order to obtain leave from the Hospital under this amendment, an employee does NOT need to provide a medical certificate. However, an employee may be required to provide other reasonable proof. For example, if an employee needs to look after her child because of a daycare closure, she may need to provide some proof of the closure if asked.
REGULATION UNDER THE EMERGENCY MANAGEMENT AND CIVIL PROTECTION ACT
On March 21, 2020 the Province of Ontario filed Regulation 74/20 under the EMCP Act. The Regulation permits hospitals to override provisions in the collective agreement related to the performance of bargaining unit work, where reasonably necessary to deal with the COVID19 outbreak. The Regulation permits the assignment of work to those excluded from the bargaining unit such as contractors, volunteers, supervisors and other excluded employees, where reasonably necessary, even when it would otherwise violate the collective agreement. Also, the Regulation permits the Hospital to make redeployment decisions that conflict with the terms of the collective agreement and to decline vacations and other leaves, again where reasonably necessary.
Finally, while the Union will be assiduously monitoring to ensure that any non-compliance with the collective agreement meets the test of being reasonably necessary, the Regulation allows the Hospital to suspend dealing with grievances during the period of the COVID19 outbreak.
We are providing a copy of the Regulation for members to review.
- I’m a casual employee who isn’t getting called for shifts. Will I be able to apply for EI or CERB? ANSWER: Yes. The CUPE 4000 Executive has raised this with the Hospital and TOH has agreed to provide an ROE to a casual employee in that circumstance who requests one, so that you will be able to apply for CERB or EI.
- I’m part-time and still getting some hours but not as many. Can I get CERB to make up the difference? ANSWER: While the Union does not normally provide advice to members on matters relating to the CRA, which will administer CERB, it appears fairly clear that there will need to be a cessation of employment, rather than just a reduction of hours, in order to be entitled to CERB.
- If I am entitled to leave under the Employment Standards Act amendment for Infectious Disease Emergencies, am I also entitled to payment under CERB? ANSWER: It depends. The leave arises from an Act of the Province of Ontario and the payment under CERB is federal. The two pieces of legislation will likely overlap in some areas and not in others. But again, questions about entitlement to CERB are best put to the Canada Revenue Agency and you will need to contact that Agency and explain your circumstances.
- If the Hospital lays me off contrary to the collective agreement and then assigns my work to contractors or supervisors or volunteers, will CUPE 4000 fight that? ANSWER: Just watch us!
- Can I choose to leave employment on my own and collect CERB? ANSWER: Once again, without providing advice on a payment from the CRA, it appears clear that an employee who chooses to leave employment will not be eligible for CERB.
Stay safe everyone!
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