Managing the COVID-19 Pandemic: Information for First Nation Governments and Businesses

In these unprecedented times, First Nations governments, organizations and businesses are facing new and rapidly evolving challenges. Every day brings more news about COVID-19 and what governments are doing to help protect and support people and businesses through the pandemic.

 In this bulletin, we set out some key considerations and information for First Nation governments and businesses, and provide summaries of some of the available information on recently announced government initiatives to support businesses and employees.

 The issues arising as a result of the COVID-19 pandemic are wide-ranging and complex. First Nations communities are particularly vulnerable to the impact of this disease.

 Please note that the content in this bulletin is provided for general information purposes only and does not constitute legal advice. If you have specific questions or require advice, we encourage you to contact our office. We remain fully operational and ready to help.

 The information in this bulletin is current to May 22, 2020.

 

RE-OPENING PLANS

Some provinces and territories have recently started to release plans for re-opening their economies and societies. These multi-phase plans include the slow reintroduction of non-essential services and gradual reduction of restrictions on certain activities. Re-opening is not a return to normal, but an easing of certain restrictions to permit businesses and organizations to commence operations. Many restrictions will continue to be in place and the level of restriction varies by jurisdiction.

Social (physical) distancing, hand washing and excellent hygiene practices remain critically important. General advice remains to avoid non-essential travel and that people who can stay home should continue to do so.

Any First Nations organizations and businesses that are now permitted to resume or expand operations must ensure they comply with all current orders and recommendations of the public health officer in their jurisdiction. The restrictions and guidelines may change over time as the public health officers continually assess the impact of re-opening on infection rates and the anticipated load on the health system. Some First Nation communities may also be subject to their own restrictions that are more stringent than the public health officer orders and recommendations.

As we move into this next stage of the pandemic, First Nations will need to stay current on guidance from public health authorities to ensure safe re-opening of their communities. Below are links to re-opening plans by jurisdiction. We also recommend you check provincial and territorial public health officer pages frequently.

Re-opening Plans by Jurisdiction

This site is regularly updated and provides a summary of what the rules are in each provincial/territorial jurisdiction. In addition, you can visit the below websites for information directly from each jurisdiction.

Canada:

COVID-19-related travel restrictions and quarantine/self-isolation orders remain in place. On May 19, 2020,  the Government of Canada announced that the border with United States will remain closed until June 21. For more information on this and other matters, see Canada’s comprehensive COVID-19 Information Site.

 British Columbia:

British Columbia’s has extended the state of emergency another 14 days to May 26, 2020, with the province indicating that it will remain in place for the foreseeable future.

 Alberta:

 Saskatchewan:

 Manitoba:

 Manitoba is starting Phase 2 of its re-opening plan, increasing limits on mass gatherings to 25 people indoors and 50 outdoors, discussing expanding which businesses can re-open and implementing measures for visitors at certain personal care facilities.

 Ontario:

Quebec:

 New Brunswick:

Prince Edward Island:

 Newfoundland and Labrador:

 Nunavut:

 Northwest Territories:

 Yukon:

QUICK REFERENCE GUIDE: STAY AWARE OF FUTURE CHANGES

Most of the legislation implementing federal, provincial and territorial support programs has been drafted to allow the governments to adapt to rapidly changing circumstances and to make quick modifications to criteria, amounts and timing. The specifics of some of these programs have not yet been released and more changes may be yet to come.

We recommend you check government webpages frequently to stay current on the details of their support initiatives.

Federal:

 British Columbia:

Yukon:

SUPPORTS FOR INDIGENOUS COMMUNITIES

Indigenous Services Canada (ISC) has provided a guide for accessing additional supports during the COVID-19 pandemic. To find out more about what is available in your province or territory, contact your regional office.

Indigenous leadership should be aware of the recommendations for avoiding and preventing the spread of infection, managing Boil Water and Do Not Consume advisories, and how remote and isolated communities can prepare. Education of community members will be critical to ensure everyone does what is needed to slow the spread of COVID-19.

Canada has established the Indigenous Community Support Fund as part of its COVID-19 Economic Response Plan to help Indigenous communities prevent, prepare and respond to COVID-19. Additional funding supports may be accessed through the First Nation and Inuit Health Branch, the Emergency Management Assistance Program.

On April 4, 2020, Canada announced it is committing $207.5 million to support organizations that provide support and services for people experiencing homelessness and women fleeing gender-based violence during the pandemic through Women and Gender Equality Canada. Included in this package is $10 million to support ISC’s network of 46 emergency shelters on-reserve and in Yukon for women and children fleeing violence which will be delivered through the existing Family Violence Prevention Program and will be calculated on the basis of pre-existing formulas.

To address growing concerns around food security, the list of perishable and non-perishable food-items that are subsidized for eligible communities through Nutrition North Canada is expanding; communities that participate in this program can view the expanding list of eligible items here.

ISC maintains a stockpile of personal protective equipment and hand sanitizers in the event of health emergency in First Nations on-reserve communities. This stockpile is accessible in cases where other sources or PEE are unavailable and to ensure the safety of healthcare workers and other supporting delivery of health services.

To request funding for costs related to COVID-19 or to request personal protective equipment (PPE), communities should model these templates and consult with their ISC regional office.

Indigenous Community Support Fund

Intended for First Nations communities (including self-governing and modern treaty nations), Inuit communities in Inuit Nunavut, Métis governing members in BC, Alberta, Saskatchewan, Manitoba and Ontario, and regional, urban and off-reserve Indigenous organizations, including Friendship Centres and the Métis Settlements General Council of Alberta.

Funds can be used for measures such as:

  • Support for Elders and vulnerable community members
  • Addressing food insecurity
  • Providing educational and other support for children
  • Providing mental health assistance and emergency response services
  • Preparing measures to prevent the spread of COVID-19

There is no application deadline for communities as funding will flow through existing agreements.

The call for proposals for COVID-19 prevention projects for organizations and communities providing services to Indigenous people living in urban centres and off-reserve is now closed. However, Prime Minister Trudeau announced May 21, 2020 that an additional $75 million in funding will be made available to community groups to support Indigenous people who live in urban centres and off-reserve. Stay tuned for more details as they come available.

First Nation and Inuit Health Branch

The FNIHB provides funding and support for Indigenous communities to develop and maintain their hazard or pandemic plans. This role is filled by the First Nations Health Authority (FNHA) in BC which has collected information for community leaders here, including weekly situation reports.

First Nations communities can use this funding for a broad range of COVID-19-related expenses, including:

  • Infection prevention and control supplies for community service providers;
  • Medical and emergency transportation under the Non-Insured Health Benefits program
  • Health human resources surge capacity
  • Mental health services to support communities
  • Adaptation of community space for surge capacity access to medical care or for isolation
  • Storage costs of supplies
  • On-the-land initiatives to support social isolation or food security

Emergency Management Assistance Program

The EMAP program provides emergency assistance to First Nations communities on reserve that are under imminent threat, again for a broad range of expenses related to operating a comprehensive emergency response plan. Currently, EMAP is dedicated for ensuring the immediate health and safety of First Nations related to COVID-19 and is not available for capacity-building activities, though funding is still accessible in the event of floods, fire or natural disasters.

Healthcare Support for Indigenous Communities in BC

On April 20, 2020 the Government of BC announced a new framework for supporting remote and Indigenous communities by improving access to critical and culturally appropriate healthcare. The framework will include increased access to ambulances and helicopters to improve care in remote and Indigenous communities, as well as increased testing capacity. Details will follow.

Emergency Relief for Indigenous Communities in Ontario

The Ontario Ministry of Indigenous Affairs (IAO) will be providing funding supports for Indigenous communities to purchase critical supplies, implement enhanced public health measures and self-isolation measures and prepare for the COVID-19 pandemic. Read more about Ontario’s COVID-19 response here.

Ontario First Nations, Tribal Councils and Provincial Territorial Organizations should consult the IAO website for information about COVID-19 Emergency Response Funding, including funding for the following purposes:

  • People and Distribution of Goods (staffing and supplies)
  • Indigenous Community Awareness and Prevention
  • Indigenous Pandemic Planning
  • Indigenous Self-Isolation Facilities
PROTECTING COMMUNITIES: STATES OF EMERGENCY, RESTRICTIONS ON TRAVEL, EMERGENCY LAWS

All the provinces and territories have now declared states of emergency. These orders do not override the jurisdiction of First Nations governments. Local states of emergency declared by band council resolution or by declaration continue to apply. In addition, some provinces and territories have added restrictions on non-essential travel, including reduced access to public transit and border checkpoints to regulate access entirely. Yukon has placed restrictions on all non-essential travel into the territory, anyone arriving from outside the territory is required to self-isolate for 14 days and non-residents transiting through Yukon must leave within 24 hours after entry. Additionally, the Yukon Chief Medical Officer of Health has strongly recommended against non-essential travel between Yukon communities.

You can look up the rules specific to your province or territory at this site, which is regularly updated.

COVID-19 poses an immediate and serious threat to First Nations communities. The challenges facing First Nations on an ordinary basis, including inadequate overcrowded housing, high levels of underlying health conditions, poverty and limited access to necessities, like food, clean water and medical services make them particularly vulnerable to a COVID-19 outbreak. The risk to vulnerable Elders and knowledge-keepers is also an existential threat to their language and culture. There have been several confirmed cases of COVID-19 in First Nations communities across Canada and many First Nations are calling for strict measures to try to protect their people, including community lockdowns.

Canada has indicated that its military is readying to respond to COVID-19 outbreaks in remote Indigenous communities by providing medical personnel, field hospitals, supplies and more. British Columbia has committed to supporting First Nations in managing COVID-19 through agencies, including Emergency Management BC and First Nations Health Authority.

All First Nations should communicate with their provincial or territorial emergency management agencies to ensure they understand provincial/territorial restrictions and to obtain support for emergency measures. In addition, it will be important to coordinate with local law enforcement, membership and the local media to ensure that everyone is aware of the measures that are being put in place.

Continuity of Governance and Administration – Remote Operations and Best Practices

Many First Nations governments have moved to remote operations during the pandemic. This can present a challenge to continuity of operations and governance. We recommend establishing rules and procedures to formalize remote operations and to ensure decisions of government are validly made. These should include best practices for conducting Council meetings by video or teleconferencing to preserve confidentiality, and resolutions authorizing Council meetings be conducted by video or teleconferencing, the use of digital signatures and other measures that enhance social (physical) distancing measures. Once such a resolution has been made, it can referenced in future decisions, including the passage of resolutions, enactment of laws or formalization of other governance documents. Now, even more than ever, it is vitally important that detailed minutes are taken of all Council meetings and properly stored.

Community Protection Laws

Many First Nations are taking measures to protect their communities by enacting emergency laws and bylaws to support measures such as restricting access to their reserves, requiring members to self-isolate and establish other rules critical to preventing COVID-19 spread in their communities as ordered or recommended by public health officers. Properly drafted laws and bylaws, combined with strong educational outreach in the community and coordination with local law enforcement can create reasonably effective enforcement of these important health and safety rules. First Nation governments are primarily responsible for the administration and enforcement of their bylaws, including those related to the COVID-19 pandemic.

 We can assist with development and implementation of emergency bylaws, coordination of agencies, enforcement options and other measures.

CHILDREN, YOUTH AND FAMILIES

The COVID-19 emergency is placing unique strains on the efforts of First Nations leaders to bring about fundamental legislative reforms to improve the lives of First Nations children, youth and families.

Indigenous Services Canada has indicated that youth who have reached the age of majority will continue to receive supports for at least 6 months, or as long as the outbreak lasts. An additional $207.5 million has been allocated to support those experiencing homelessness and women/children fleeing gender-based violence during the pandemic, including $10 million specifically allocated to ISC shelters on-reserve and in Yukon supporting Indigenous women and children fleeing violence.

Bill C-92, An Act Respecting First Nations, Inuit and Metis children, youth and families was given Royal Assent on June 21, 2019 and came into force on January 1, 2020.  This new federal legislation provides a “national” regulatory framework supporting and implementing the inherent self-government powers of Indigenous governing bodies over child and family welfare, including giving priority to Indigenous laws over federal and provincial laws. It represents a meaningful move away from antiquated provincial laws and policies that were imposed without the consent of First Nations peoples, or consideration of their inherent rights of self-government or other human rights.

Significant efforts have been underway to establish Indigenous child and family services laws and processes under the new federal legislation. However, this work has only just begun and, for most, the provincial and territorial regimes still apply. Having these legacy systems continue during the COVID-19 crisis may result in many problems for families and communities. The prohibition on visiting children and youth in care, limits on doing necessary work reconnecting children and families, and reassessment placement with return of children to community placement, are all potentially on pause.  However, this should not be the case and work in this area must continue.

Many First Nations are taking emergency measures to address the safety and well-being of their citizens during the pandemic, including declaring states of emergency and passing bylaws that restrict access to their communities. It is important that these measures include continuing efforts to implement the new federal legislation and support Indigenous legal orders. For example, emergency bylaws should include provisions that ensure child and family services work can continue.

 Resources are available to support the work of First Nations, Metis and Inuit governments in relation to children and families. Senior Counsel at Woodward and Company, Mary Ellen Turpel-Lafond, has authored a number of guides and materials to support planning, including the “Primer on Practice Shifts required with Canada’s Act Respecting First Nations, Inuit and Metis Children, Youth and Families Act.”

For assistance or further guidance, please contact our office.

ELECTIONS

Many First Nations across Canada are facing upcoming elections and are concerned about whether and how to proceed in the face of the COVID-19 pandemic. If a Council’s term is coming to an end soon, they could be in the position of deciding between following election legislation and risking the health and safety of their members.

Initial responses from Ottawa were not clear and there was reporting that First Nations communities were being pressured to proceed with elections or be faced with a governance gap because the Indian Act and First Nations Election Act do not provide for the terms of current Councils to be extended.

On April 16, 2020, Canada announced it has introduced a temporary regulation to allow First Nations councils to extend their tenure for a limited period of time to accommodate the postponement or cancellation of elections during the pandemic. The First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) covers elections under the Indian Act and the First Nations Election Act, allowing for cancellation, postponement, extension of tenure and circumstances where elections took place in the 30 days prior to enactment of the regulation. For First Nations who operate under a custom election code, the regulation empowers the First Nation to extend the council’s tenure even if the custom election code does not provide for such a situation.

As provinces and territories “flatten the curve” and society begins to re-open, First Nations may choose to proceed with upcoming elections. In such a scenario, First Nations should enforce social (physical) distancing, ensure appropriate hygiene measures are in place and provide personal protective equipment where necessary and/or possible.

Please contact us for legal advice on how the First Nations Election Cancellation and Postponement Regulations may affect your Nation.

GENERAL OPERATIONAL CONSIDERATIONS

First Nation governments and businesses have and will continue to be impacted by the current global pandemic for the foreseeable future. We can assist with developing and implementing these necessary operational adaptations.

First Nations governments will need to put in place the necessary tools to permit them to govern and operate remotely. This may include establishing procedures for holding duly convened Council meetings by tele- or video- conference and ensuring band council resolutions are properly passed in accordance with the requirements of the Indian Act.

First Nations governments and corporations alike may benefit from purchasing digital signature software to facilitate remote signatures on governance documents, correspondence and contracts.

As employers, these organizations will have to juggle competing interests, including their obligations to maintain a safe workplace, the rights of the employees to take leave or refuse work, delivering essential programs and services to First Nation members, to protect First Nation businesses and prevent serious financial loss.

It will be important to stay informed of the evolving situation as the situation is changing daily and to plan for:

  • Increased need for sanitizing and hygiene measures and supplies
  • Increased staff absences
  • Decreased member/customer engagement in public places
  • Disruption of essential services, transport and supply chains
  • Increased demand for certain products and services
  • Cancellation or disruption of travel, especially cross-border
  • Increased demand on tech equipment, broadband and other tools for working remotely
  • Increased demand on health services organizations

Organizations will benefit from developing contingency and continuity plans with the expectation that these changes may be prolonged.

Employers should communicate proactively with employees about their communicable illness and travel policies. They should assess the risk level of the organization, implement strict hygiene precautions and provide current information about self-quarantine requirements, testing, and available resources and supports.

The emphasis on social distancing as a tool to “flatten the curve” and slow the spread of infection means employers need to take into account the organization’s level of exposure, the risk of disruption to supply chains and business operations and flexible plans for resourcing and managing staffing shortages. As provinces and territories begin to ease restrictions, the employer’s obligation to maintain a safe workplace will become increasingly important.

First Nations should track expenses related to COVID-19 preparation, office shutdowns and remote-working, such as medical supplies, disinfectants, software purchases, IT infrastructure, conference call costs and emergency contracts through a dedicated accounting code in the event that emergency funding for administrative and governance costs becomes available.

Several organizations have provided helpful, in-depth planning information designed for small businesses:

Essential Services in BC

The BC government has implemented measures to protect consumers and the supply chain in BC and has designated the list of essential services in the context of COVID-19 response and recovery. Currently, businesses that have not been designated as essential services may be permitted to continue operating in consultation with the Provincial Health Officer and in compliance with the orders and recommendations of the Provincial Health Officer. Additional information can be found on the BC Centre for Disease Control website.

Essential workers who need child care to continue working can find and apply for Temporary Emergency Child Care.

Essential Services in Yukon

The Yukon government has designated a list of critical, essential and non-essential services in the context of COVID-19 response and recovery. The Civil Emergency Measures Health Protection (COVID-19) Order passed on April 2, 2020 prohibited the operation of bars, eat-in restaurants, personal service establishments, and non-emergency dentistry. Non-essential businesses which have not been ordered to close pursuant to the Civil Emergency Measures Health Protection (COVID-19) Order may stay open if they can adapt their services and workplace to the legal orders and guidelines established by the Chief Medical Officer of Health.

EMERGENCY OFFICE CLOSURES

First Nations may be considering emergency office closures and/or remote working arrangements in order to adhere to public health recommendations regarding social distancing or to generally reduce the spread of COVID-19. It should be noted that we do not know how long the current public health crisis related to COVID-19 will last. As such, any emergency office closure should follow a policy established by the First Nation which allows a flexible response as the situation evolves. Many First Nations have emergency preparation plans or policies already in place. If not, we recommend that one be passed prior to First Nation governments making any decisions to close. If a First Nation has already closed its office, it is not too late to put a policy in place to provide structure and guidance around the extent and nature of the closure, and protocols for re-opening.

 While emergency office closures are in place, First Nations likely need to modify working conditions which may require changes to policies governing remote work. Given emergency closures due to COVID-19 are likely to continue for an extended time, we recommend a review of necessary remote work policies.

Organizations that are considering an emergency closure, or that have already implemented an emergency closure, but do not have established policy to allow for such a closure should seek legal advice. It is also a good idea to seek legal advice regarding updates or changes to existing personnel policies to facilitate remote work.

EMPLOYER OBLIGATIONS

Most First Nations governments fall under federal jurisdiction for employment matters, though certain departments such as health and education may fall under provincial or territorial jurisdiction. First Nation-owned companies generally fall under provincial or territorial jurisdiction.

Because the matter of jurisdiction can be complex, we encourage all organizations to seek legal advice specific to their circumstances and jurisdiction.

COVID-19 has not changed the statutory obligations First Nations have as an employer. However, certain requirements have become more critical during this time.

HEALTH AND SAFETY

All employers are required by law to ensure the health and safety of their workers. This obligation requires employers to ensure they are aware at all times of the most current orders and recommendations of the federal, provincial and territorial public health authorities, particularly with respect to COVID-19.

As provinces and territories begin to relax restrictions, this obligation will take on increasing significance. All employers must institute measures to reduce risk of infection by and exposure to COVID-19 in the workplace.

Health Canada refers businesses to the World Health Organization recommendations on preparing for COVID-19 in the workplace (current to March 19, 2020). We encourage adherence to these guidelines as a minimum, and regularly checking the WHO website for updated recommendations and technical guidance for schools, workplaces and institutions.

The Canadian Agricultural Human Resource Council has compiled important information for food producers who will continue operating during the pandemic, and AgSafe BC has provided Emergency Planning Tools, including an occupational health and safety template, for agriculture employers.

If an employee is suspected of being ill, in particular with a respiratory illness, employers can and should require the employee stay at home until the symptoms resolve.

More generally, an employer should ensure necessary policies and procedures are in place to address the particulars of the current public health crisis. First Nations governments and businesses should confirm emergency/pandemic policies are adequate, implement measures to prevent the spread of COVID-19 in the workplace and inform employees of their rights regarding workplace health and safety.

If there is a confirmed case of COVID-19 in a federal workplace, employers must advise the Labour Program at 1-800-641-4049.

Employers should take steps to mitigate the risk of COVID-19, such as:

  • Ensure employees who have symptoms of illness or are feeling unwell do not attend the workplace,
  • Consider whether certain tasks will put employees at a greater risk of exposure,
  • Provide personal protective equipment,
  • Increase hygiene and sanitation practices,
  • Permit employees to work from home as appropriate/possible, and
  • Add controls or precautions to Hazard Prevention Programs.

If an employee has tested positive for COVID-19, they should not be permitted to return to work until permitted to do so by Communicable Disease and/or Public Health officials.

Employers will need to ask employees certain personal questions about their health and, in some cases, conduct health assessments. Privacy laws still apply to restrict the employer’s collection and use of this personal information. We recommend seeking specific advice regarding these competing obligations around health, safety and privacy.

Employers need to be aware of any employee travel and plan accordingly. An official global travel advisory is in effect and Canadians have been advised to avoid all non-essential travel outside of Canada until further notice. The Canada-US border is closed to all non-essential travel. On March 25, 2020, Canada issued an Emergency Order under the Quarantine Act requiring that any person entering Canada by air, sea or land must quarantine for 14 days, whether or not they have symptoms of COVID-19.

Canada has repealed and reissued an Order under the Quarantine Act, in force as of April 15, 2020, requiring any person entering Canada – whether they are symptomatic or asymptomatic – to quarantine or self-isolate for 14 days from date of arrival. Travellers must confirm their plans for a suitable place to self-isolate with access to food, medicine, and separation from any vulnerable person (e.g. persons over 65 or with pre-existing health conditions). Travellers without appropriate plans are required to quarantine at a place designated by the Chief Public Health Officer of Canada.

Some provinces and territories have implemented interprovincial travel restrictions, including requirements that people arriving into the province or territory self-isolate. Travellers to the Northwest Territories and Yukon should familiarize themselves with the mandatory protocols for entering those territories.

Employers should refer to the relevant authorities in their province or territory to ensure they are aware of changes to travel restrictions that may affect their employees.

An employee who has recently travelled internationally or, where interprovincial restrictions apply, outside the province or territory, should not return to the workplace for 14 days. You should contact your public health authority immediately if you are aware of an employee who is not complying with an order of the public health officer. This may lead to unexpected employee absences for which employers will need to plan.

We recommend that employers check the Health Canada website on a daily basis to get the most up to date advice and recommendations regarding prevention measures and their obligations.

In addition, be aware that all provinces and territories have declared states of emergency. This expands provincial or territorial powers to deliver health care services, control crowds and regulate business. Requirements are changing every day. The Globe and Mail has created this resource to provide information specific to each province or territory.

The British Columbia government provides comprehensive information through the Ministry of Health website.

The centres for communicable disease control also provide comprehensive information specific to the province/territory and include recommendations for employers and businesses to follow during the pandemic:

These websites are being updated regularly, but may not always be current with the daily recommendations of the federal, provincial or territorial public health officers. Therefore, we recommend staying up-to-date on the daily pressers being given by government authorities for the most current information.

 LEAVES – * New COVID-19 Leaves*

All employers should review their sick leave and other policies. If the employer does not have an emergency/pandemic policy in place, now is a good time to implement one. In addition, employers must be certain to meet their minimum statutory obligations with respect to leaves. Employees who are not ill but who are told by the employer to stay home are likely entitled to paid leave, and employers should seek specific advice.

Many First Nations and First Nation businesses are requiring employees to continue to work remotely and provide regular communication to their supervisor in order to maintain their salaries. In the event of an emergency closure, First Nations and First Nation businesses should know that they are not obligated to indefinitely pay employees who are not working, including those employees who are unable to work remotely.

Organizations who are considering cessation of wages should seek legal advice specific to their circumstances and applicable jurisdiction.

Canada, the provinces and the territories all exercise jurisdiction over employment matters and the rules vary across jurisdictions. Determining which jurisdiction applies to your workforce can be complex. If you are uncertain what jurisdiction applies to your workplace, or require assistance understanding changes to leave entitlements, please contact us.

Canada Labour Code – *NEW* COVID-19 Leave

Federally-regulated employees are entitled to unpaid medical leave for up to 17 weeks. On March 25, 2020, the federal government passed Bill C-13, COVID-19 Emergency Response Act. Included in that legislation is an amendment to the Canada Labour Code (Code) which permits employees who are “unable or unavailable to work for reasons related to [COVID-19]” to take a leave of up to 16 weeks without providing a medical certificate, however an employer can request a written declaration (Division XIII.01 – Leave Related to COVID-19, s. 239.01(1)). As with other leaves under the Code, this unpaid leave is job-protected, employment is deemed continuous, and benefits continue. An employee may interrupt or postpone their vacation to take the COVID-19 leave, and parental leave may be extended or interrupted by the amount of the COVID-19 leave (ss. 187.1(1) and 187.2(1)). The federal COVID-19 leave is time-limited and will be repealed on October 1, 2020. It will be replaced by a medical leave of absence of up to 16 weeks as a result of quarantine (s. 207.02(1.1)).

In addition, employees may now take compassionate care leave, leave related to medical illness and medical leave whether or not they provide a medical certificate (s. 168.1(1) and (2)). This temporary change will be repealed on September 30, 2020.

BC Employment Standards Act – Amendments and *NEW* COVID-19 Leave

On March 23, 2020 the Legislative Assembly of British Columbia passed important changes to the ESA.

First, employees in BC who have worked for at least 90 consecutive days for an employer are now entitled to up to 3 days of unpaid, job-protected leave each year to manage an illness or injury. If requested by the employer, the employee must provide reasonable proof that they are entitled to sick leave at that time. This is a permanent change.

Additionally, the ESA now provides for unpaid, job-protected COVID-19 leave.  These changes are temporary and will be repealed when they are no longer necessary. This leave is available to employees if they have been impacted by COVID-19 in any of the following ways:

  • They have been diagnosed with COVID-19 and are following a medical order or advice;
  • The employee is in quarantine or isolation in accordance with an order of the Provincial Health Officer, an order under the Quarantine Act (Canada), or guidelines provided by the BC Centre for Disease Control or the Public Health Agency of Canada;
  • The employer has directed the employee not to work due to their concern about the employee’s exposure to COVID-19;
  • The employee is providing care for a child or adult under their care; or
  • The employee is outside the province and unable to return due to travel or border restrictions.

Employees are protected from termination in these circumstances retroactively to January 27, 2020; employees who were terminated due to any of these circumstances is entitled to be re-employed in the same or a comparable position. This leave does not affect an employer’s ability to lay off employees for business reasons such as loss of business or business closures.

Yukon Paid Sick Leave Rebate for employers and *NEW* COVID-19 Leave

The Yukon Paid Sick Leave Rebate is a new program to support businesses that do not currently offer paid sick leave to their employees. A business may apply for the rebate of wages paid to each employee while they are on sick leave and/or following mandatory self-isolation requirements if the business meets three of the following criteria:

  • The business has an office with a physical address in Yukon;
  • The business is subject to the Yukon Income Tax Act;
  • The business is registered pursuant to the Business Corporations Act or the Partnership and Business Name Act;
  • The business has a valid municipal business license.

 The rebate will cover a maximum of 10 days’ wages per employee to a maximum of $378.13 per day. The rebate will not cover benefits, payroll taxes or deductions and is only applicable when the employee has used all other paid sick leave available to them. This benefit is not available to First Nation governments but may be available to First Nation businesses.

On March 26, 2020 the Yukon government passed the Leave (COVID-19) Regulation, YOIC 2020/58 pursuant to the Employment Standards Act. This regulation provides for unpaid, protected leave up to fourteen (14) days in order to follow a health protection measure or care for a close relative subject to a health protection measure. An employee is only permitted to take this leave once and is not required to provide a medical certificate as otherwise necessary under subsection 59(3) of the Employment Standards Act.

LAYOFFS

The impacts of COVID-19 may result in some organizations having to reorganize their workforce to accommodate employees who are self-isolating or quarantined, or to layoff employees due to a lack of work, supplies or labour. For the most part, the employer’s usual obligations in respect of notice or pay in lieu of notice for layoffs and dismissals continue. However, certain statutory exemptions may apply depending on applicable jurisdiction and circumstance. For example, federally-regulated employers may be able to layoff or dismiss non-unionized employees for lack of work or discontinuance of function.

In British Columbia, temporary layoffs for non-union employees are only permitted in certain, limited, circumstances and employers should seek advice before taking such steps. Section 65 of the BC Employment Standards Act creates an exemption permitting employers to dismiss employees without notice if the employment contract becomes impossible to perform due to unforeseeable events or circumstances. It may be that the COVID-19 pandemic could qualify as such an event; however, this has not been tested by the courts so it remains an open question.

 Organizations who are considering layoffs or otherwise reorganizing their workforce as a result of the pandemic should seek legal advice specific to their circumstances and applicable jurisdiction.

EMPLOYER OBLIGATIONS DURING RE-OPENING

Provincial and territorial governments are slowly beginning to relax restrictions and re-open their economies. Employers must plan to ensure that they resume operations in compliance with all applicable orders and recommendations of public health officers. Below is some information to assist employers with understanding how to fulfill their health and safety obligations during re-opening. We recommend seeking specific advice in regard to individual workplaces.

Q: When should I re-open my workplace?

A: Legal restrictions on which businesses may open may vary between jurisdictions. Businesses should confirm whether they may legally re-open in their jurisdiction. If re-opening is permitted, an employer should not commence operations until they are able to ensure a safe workplace that appropriately manages the hazards presented by COVID-19.

Q: How Do I Assess COVID-19 hazards in the Workplace?

A:  Orders and recommendations of public health officers represent the minimum standards that employers must meet. Check the workplace insurance organization for your relevant jurisdiction to determine requirements (see below). In British Columbia, WorksafeBC has published a guide for employers to assist with preventing exposure in the workplace.

Q: Do I need to enforce physical distancing in the Workplace?

A: The best known way to keep employees from contracting COVID-19 is to reduce physical contact between employees. Employers should implement policies that ensure physical distancing is enforces and maintained. If physical distancing is not possible due to the nature of the work, consider other measures, including staggered shifts, regular cleaning during the workday and providing personal protective equipment (see more below).

Q: In addition to physical distancing, how else should I prevent transmission of COVID-19 in the Workplace?

A: Employers should

  • promote proper hygiene in the workplace,
  • provide access to soap, water, and disinfectant;
  • place hand sanitizer dispensers around the workplace;
  • develop regularly scheduled enhanced cleaning and disinfecting of the workplace;
  • prevent symptomatic employees from attending the workplace;
  • ensure that all employees are trained on COVID-19 related policies

Q: Am I required to provide Personal Protective Equipment (PPE)?

A: Where it is impossible to implement physical distancing, or if the nature of the work puts employees at increased risk of exposure, employers should require employees to wear PPE. Employees must be trained how to properly use PPE. If an employer requires the use to PPE, the employer must supply such PPE.

Q: How do I handle symptomatic employees?

A: The employer should immediately separate the employee from the workplace. The employee should not be permitted to return to work until they are free of symptoms, have received medical clearance and have completed self-isolation as required by the public health officer. Contact tracing may be directed or conducted by public health authorities.

Q: Are Employees required to return to work?

A: The obligations of the employment contract continue during a layoff. Employees who are recalled to work are obligated to return to work provided the employer is able to provide a safe working environment. Where possible and appropriate, employees should continue to work remotely.

Q: What human rights obligations apply?

A: All an employer’s usual human rights obligations with respect to discrimination apply. Employers should be careful to accommodate employees whose ability to return to work may be affected by a prohibited ground of discrimination, such as their family circumstances (for example, childcare obligations) or underlying health conditions.

Q: Can I ask Employees if they have any COVID-19 Symptoms?

A: Employers are permitted to collect health information from employees that is reasonable in the circumstances, but privacy laws continue to apply. Employers should be cautious about what they ask and to keep any information collected confidential. It is preferable to have a communicable illness policy in place to provide guidance on the use and collection of this information. We recommend seeking specific advice.

For further information on restrictions and guidelines for workplace safety please consult:

British Columbia

Alberta

 Saskatchewan

Manitoba

Ontario

 Quebec

 New Brunswick

 Nova Scotia

 Prince Edward Island

 Newfoundland and Labrador

Yukon

 Northwest Territories & Nunavut

 Please contact us for legal advice if you have any question or concerns about your obligations as an employer regarding re-opening.

SUPPORTS AVAILABLE FOR BUSINESSES

Federal, Provincial, and territorial governments are providing supports for business. If you have any questions about your eligibility, please contact us.

Federal Assistance for Indigenous Businesses

On April 18, 2020 the federal government announced a substantial stimulus package for Indigenous businesses totaling over $306 million which will be administered through the National Aboriginal Capital Corporations Association and Aboriginal Financial Institutions.

 Federal Aid for all Businesses

The Federal government has announced a number of measures it is undertaking to support Canadian businesses in the face of the impacts of COVID-19. Detailed information on Canada’s COVID-19 Economic Response Plan can be found at the Department of Finance website. We encourage businesses to continue to check back on the website as more information will continue to come available.

Some of the measures being undertaken by Canada include:

  • Canada Emergency Commercial Rent Assistance (CECRA)
    • In cooperation with the provinces and territories, the CECRA will lower rents for small businesses, including non-profits and charities, by 75% for April, May and June. The CECRA will be delivered through the Canada Mortgage and Housing Corporation.
  • Canada Emergency Wage Subsidy – (CEWS)
    • Corporations that have experienced a decrease in revenues of at least 15% in March and 30% in the following months as a result of COVID-19 can apply for the CEWS for up to 75% of remuneration up to a maximum of $847 weekly per employee and $25,000 per employer, backdated to March 15, 2020. On May 15, 2020, the Prime Minister announced this program will be extended to the end of August. Stay tuned for more details.
    • The CEWS is intended to support employers for wages paid to employees they currently employ. If an employee has been laid off due to the COVID-19 crisis, the employer must re-employ the employee in order to seek wage subsidy benefits for that employee. However, there is apparently no need for employees to actually be performing employment duties, provided they are on the employer’s payroll.
    • Canada is proposing to expand the CEWS by introducing a 100% refund on certain employer-paid contributions to Employment Insurance and the Canada Pension Plan, among others for employees on leave with pay.
  • The 10% Temporary Wage Subsidy program allows eligible employers to reduce the amount of payroll remittances they must pay for remuneration paid between March 18 and June 19, 2020.
  • The Northern Business Relief Fund will provide non-repayable grants to small and medium-sized businesses operating in the territories that have been impacted by COVID-19. Businesses in Yukon should apply through the Yukon Business Relief Program.
  • Through the Business Credit Availability Program (BCAP), the Business Development Bank of Canada and Export Development Canada will partner with private-sector lenders to offer credit solutions, particularly to farmers and small to medium-sized businesses such as working capital loans, postponed payments, and reduced rates on new loans.
  • The Canada Revenue Agency (CRA) is implementing several measures to help businesses manage during COVID-19. Most audits have been suspended for the next 4 weeks, and businesses will be permitted payment deferrals until after August 31, 2020 without interest or penalty. See the the CRA website or contact a Liaison Officer to understand your rights and obligations.
  • The Canada Emergency Business Account is available to businesses and non-profits with a payroll of between $20,000 and $1.5 million to receive loans up to $40,000 through their financial institution, with 25% forgiveness if repaid by December 31, 2022. Applications are now open through CIBC, Vancity Credit Union, Bank of Montreal, TD Bank, Scotiabank, RBC and National Bank of Canada. On May 19, 2020, the Government of Canada expanded the CEBA criteria to include sole proprietors, businesses that rely on contractors and certain family-owned corporations.
  • Farm Credit Canada is offering increased flexibility and credit available for agriculture, fisheries and aquaculture including food processors.
  • Large Employer Emergency Financing Facility (LEEFF) provides bridge financing to Canada’s largest employers to support their operations and help protect Canadian jobs, help Canadian businesses weather the current economic downturn, and avoid bankruptcies of otherwise viable firms where possible.
  • On May 14, 2020, the Prime Minister announced support for Canada’s Fish Harvesters. Up to $469.4 million in measures are available. These measures include:
    • Fish Harvester Benefit to provide income support to self-employed firs harvesters.
    • Fish Harvester Grant to provide grants to those who are a ineligible for the Canada Emergency Business Account.

Federal Aid for Indigenous Businesses

The Federal Government is providing $306.8 million in funding for small and medium-sized Indigenous businesses and support to Aboriginal Financial Institutions. The funding will allow for short-term and interest free loans, and support to Aboriginal Financial Institutions, which offer financing and support services. The support is provided through Aboriginal Financial institutions.  Further details are available here.

Flexibility for Businesses and Local Governments in BC

  • The Government of BC has created a portal website for small-businesses where they can access information, resources, and announcements from industry partners.
  • Indigenous Tourism BC has created the Emergency Relief Funds Program which will provide up to $5,000 to businesses with immediate and short-term needs as a result of the COVID-19 pandemic.
  • Businesses in BC with a payroll over $500,000 are now able to defer employer health tax payments until September 30, 2020.
  • Increases to the provincial carbon tax, the new registration requirements for e-commerce, and the implementation PST on sweetened carbonated drinks have been delayed and will be reviewed before September 30, 2020.
  • The school property tax for business and light- and major-industry property classes will be reduced by between 50 and 75% for the 2020 tax year, and the date that late payment penalties will apply for some business classes has been extended.
  • Local governments have additional flexibility to carry debt and borrow from their capital reserves, interest-free.
  • See these links for detailed information related to provincial tax obligations and local government capabilities:
  • Large businesses will be able to defer 50% of their BC Hydro payments for 3 months. Small business power bills will be forgiven for up to 3 months, from April to June. See the provincial announcement for details.
  • FortisBC will support small businesses through the COVID-19 Customer Recovery Fund, providing bill credits and allowing for payment deferral to June 30, 2020 with a 12-month repayment plan. FortisBC is also offering billing support to larger commercial and industrial customers through their key account managers.
  • On April 30, 2020 the Government of BC announced that it will defer the payment of stumpage fees for the forestry sector for lumber collected on Crown lands for 3 months.
  • The BC AgriStability Agriculture Income Protection program, which provides protection for agriculture producers, including fisheries and fish processing, has extended the enrolment deadline to July 3, 2020.

Yukon Supports

  • The Yukon government has established the Business Advisory Council to monitor and advise on the economic impacts of COVID-19.
  • Eligible Yukon businesses can apply for the Yukon Paid Sick Leave Rebate to provide paid sick leave to employees not currently eligible for paid sick leave.
  • The Temporary Support for Cancelled Events Funding Program provides funding for businesses and non-governmental organizations who are affected by the cancellation of a major event between March 7, 2020 and July 31, 2020 due to COVID-19.
  • The Yukon Business Relief Program will provide non-repayable grants to cover specific fixed costs (such as rent, insurance and utilities) incurred between March 23, 2020 and May 22, 2020 to a maximum of $30,000.00 per month. This program is not available to governments or their corporations. Applications will remain open until June 30, 2020.
SUPPORTS AVAILABLE FOR INDIVIDUALS

First Nations governments and businesses may wish to understand the options that are available for supporting their employees and members under new governmental relief measures.

First Nation Relief Measures

Several First Nations are providing financial support for their members and Citizens through a variety of measures, including individual per capita payments, rent relief, and assistance with necessities such as food and medications. Some of these measures may be supported through federal programs, while others may be supported through a First Nation’s own-source revenue.

We recommend that a First Nation considering offering financial supports for their members seek legal and financial advice to avoid or mitigate potential tax consequences for the First Nation or individual recipients.

 Ministerial Loan Guarantee Payment Deferrals

Through the Canada Mortgage and Housing Corporation (CMHC), First Nations or First Nation members can apply to have the Government of Canada guarantee loans for on-reserve housing projects including, purchasing, building or renovating residential property. Due to COVID-19, lenders can now negotiate mortgage payment deferrals on a loan guaranteed through this program without approval from Indigenous Services Canada. Individuals considering deferring their mortgage payments should see this article by CMHC to understand their obligations and access support.

Federal Relief Measures

  • Employment Insurance (EI) regular and sickness benefits:
    • Waived 1-week waiting period
    • Waived requirement to produce a medical certificate
    • Dedicated toll-free number: 1-833-381-2725
  • Extending work sharing agreements to up to 76 weeks without a mandatory waiting period through the Work Sharing Program – Temporary Special Measures.
  • $2,000 per month for up to 4 months for workers who have lost income as a result of COVID-19 through the taxable Canada Emergency Response Benefit. Applications opened April 6, 2020 and the Federal Government announced relaxed eligibility criteria on April 15, 2020. Detailed information is available on their questions and answers page.
  • The Canada Mortgage and Housing Corporation, other mortgage insurers and financial institutions are offering increased flexibility for managing mortgage and credit hardships caused by COVID-19.
  • Students may be eligible for the Canada Emergency Student Benefit, a Canada Student Service Grant, expanding work and volunteer opportunities or other specific supports.

Provincial Supports for BC Residents

For detailed information on the below, please see the government of BC website for employment, business and economic development or visit the relevant links below.

Territorial Supports for Yukon Residents

  • ATCO Electric Yukon and Yukon Energy are working with customers who are finding bill payment difficult on a case-by-case basis but have committed to not disconnect power during the COVID-19 crisis.
  • Northwestel has received permission from the CRTC to waive internet overage fees for the months of March and April.
  • The Yukon government has mandated a prohibition on evictions under the Residential Landlord and Tenant Act for any individual self-isolating or who has lost their employment due to COVID-19.

Mental Health and Wellness Supports

  • Wellness Together Canada is a newly launched federal webportal providing access to mental health, substance use and wellness supports for Canadians who may not have access to their usual support networks during the pandemic. It offers a range of information and self-assessment tools, and access to trained volunteers, peer support workers and qualified mental health professionals.
  • The Governments of BC and the Yukon have compiled a list of accessible and low- to no-cost resources to cope with mental health challenges of COVID-19 and its related impacts, for BC here and for Yukon here.
  • Individuals in BC struggling with substance use during the COVID-19 pandemic can find resources