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The Question

I was laid off and claimed the Canada Emergency Response Benefit. I was recalled to work but can’t go back because I have a child to take care of at home. My employer will terminate my employment because I refuse to come back. Am I still eligible to claim the CERB if I will be terminated? Even once daycares begin opening, can I still stay home to care for my child and claim CERB?

The First Answer

Dina Mashayekhi, Partner, Jewitt McLuckie & Associates LLP, Ottawa

Your question touches on two separate areas: eligibility for leave and eligibility for CERB.

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After declaring a state of emergency because of COVID-19, the government amended the Employment Standards Act (“ESA”) in Ontario to include infectious disease emergency leave (“DEL”). This means employees can take unpaid, job-protected leave if they are not performing the duties of their position for specified reasons related to COVID-19, including taking leave to care for their child whose school or daycare was closed due to COVID-19. Taking a job-protected leave means that you cannot be terminated for being unable to return to work. Should your employer terminate you anyway, you should consult a lawyer about a possible wrongful dismissal claim.

Although you were initially laid off due to COVID-19, I understand that you have now been recalled. The ESA permits employees to take a leave to care for a child “because of a matter related to” a designated infectious disease, “including, but not limited to, school or daycare closures.” Therefore, if you cannot secure a suitable daycare spot or your summer camps have been cancelled, you should qualify to take this leave.

In order to take DEL, you need to advise your employer in writing that you are taking this leave. While on leave, you should be eligible to remain on the CERB. The CERB has now been extended from 16 weeks to 24 weeks so if you are on leave and unable to work due to COVID-19, you can continue receiving CERB.

The Second Answer

Sania Chaudhry, Associate Lawyer at Stewart Sharma Harsanyi, Calgary, Alberta

Likely, your employer cannot terminate you for not being able to return to work due to school and daycare closures due to this type of leave being job-protected. Job-protected leave means your employer cannot terminate your employment during your leave.

In Alberta, the Employment Standards Code allows for job-protected unpaid leave for up to five days in order to take care of family responsibilities for employees that have been working for an employer for at least 90 days. Because of COVID-19, Alberta’s Minister of Labour and Immigration added a ministerial order allowing workers to take unpaid job-protected leave to meet responsibilities towards children affected by school and daycare closures due to the pandemic for the period of time recommended by the chief medical officer. This ministerial order also took away the requirement that employees have to had worked for their employer for at least 90 days to be eligible for this job-protected unpaid leave.

This means your leave to watch your children is job-protected until the Alberta government allows daycares and schools to be open again or until this ministerial order expires (August 14, 2020 or otherwise if it is replaced by another order).

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At that point, you would still be eligible for the CERB. As long as your employer does not terminate you with just cause but instead gives you a without-cause termination, you would still be eligible for EI which means you would still be eligible for the CERB up until the maximum 24 weeks.

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