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New Mandatory Paid Leave for COVID-19 Vaccinations

23-Apr-21

by Tom Ross, Q.C.James Lingwood

Within the course of a single day, the Alberta Legislature has passed the Employment Standards (COVID-19 Vaccination Leave) Amendment Act, 2021. This amendment adds section 53.9821 to the Employment Standards Code in Alberta and impacts all non-federally regulated employers and employees in the Province of Alberta.

Effective April 21, 2021, an employee is entitled to request a leave of absence to receive a COVID-19 vaccination. The employee must provide as much notice as is reasonable and practical in the circumstances. Where an employee makes this request, the employer must provide the employee with a leave of absence to enable the employee to obtain the vaccination.

An employer is not required to grant a leave in excess of 3 consecutive hours unless it believes a longer period is warranted in the circumstances. The leave of absence must be provided to the employee without any loss or reduction to pay and benefits. A question has been raised about whether allowing time to be made up or rescheduled would satisfy the requirement that there be no loss of earnings. This possibility is uncertain, but the likely intent is that employees be paid for the time required to obtain the vaccine, which could result in overtime. Employers may seek to have employees schedule vaccination at times that are less disruptive and less costly, but the timing of a vaccination may be outside the employee’s control.

The employer is entitled to require the employee to provide proof that the employee is entitled to take the leave of absence (i.e., that he or she has an appointment for a COVID-19 vaccine during working hours), but an employer cannot require the employee to provide a medical certificate or record of immunization, nor can the employer require the employee to disclose underlying medical conditions.

Summary of New Process and Entitlement

In summary, the amendment requires that (as of April 21, 2021):

  • An employee is entitled to request a leave of absence to obtain a COVID-19 vaccination;
  • The employee must provide reasonable and practicable notice to the employer;
  • The employer is entitled to require the employee to provide sufficient proof that he or she is entitled to take the leave (but cannot require the employee to provide a medical certificate, a record of immunization, or underlying medical conditions);
  • The employer must grant the leave of absence to a maximum of 3 consecutive hours (or such longer period as the employer decides is warranted); and
  • The employee cannot lose earnings or benefits as a result of the leave/absence.

New Leave Entitlement or Overlapping Benefit?

The question that will inevitably arise is:

  1. Whether this is a new mandatory leave which “stacks” on top of existing leave entitlements; or
  2. Whether the employer is entitled to deduct the leave of absence from the employee’s paid personal leave, sick leave, or other relevant leave benefits provided by the employer.

On its face, the new legislation does not establish a new entitlement to paid leave that adds to existing paid leaves. Instead, the amendment only requires that there be no loss of pay or benefit.

For those employees that have no paid leave entitlements (or who have exhausted such paid leaves), the legislation requires that an employer provide the leave with pay.

Arguably, for those employees who are contractually provided with paid leave entitlements (that are unused), the legislation appears to allow an employer to satisfy its new obligations under the amendments by applying an existing (and applicable) contractual paid leave to the vaccination leave. Using (and deducting) a paid leave of absence already provided by the employer may meet the requirements of the COVID-19 vaccination leave provided that such benefits are in excess of statutory minimums.

Nevertheless, such an approach is not without risk. Legislation is understood and clarified through jurisprudence. Given that this is new legislation, its interpretation could evolve if courts and Employment Standards tribunals weigh in on the subject.

For further information regarding this recent change or any other employment matter, please feel free to contact any member of our Labour and Employment practice group.

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