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COVID-19 Leaves – Canada Labour Code

As you may be aware there has been a great deal of information put out in various forms about the COVID-19 leave which is provided for under the Canada Labour Code.

On March 25, 2020, the federal government passed Bill C-13, COVID-19 Emergency Response Act, which contains measures designed to deal with the COVID-19 pandemic in Canada. Included among these measures is an amendment to the Canada Labour Code. Section 239.01(1) of the Code provides an unpaid leave of up to 16 weeks for employees who are unable or unavailable to work for reasons related to COVID-19. This leave is provided for by the Code and is outside of the terms of the leaves that are found in our Collective Agreement in Article 10 or L55.16.

We have had numerous members reach out to us to advise us of the fact that they had applied for the COVID-19 leave. Some were granted this leave; some were granted the leave and had it subsequently denied. We have consulted extensively with legal counsel and can provide the following information.

Legal counsel has advised us that Air Canada and Air Canada Rouge should grant COVID-19 leaves to eligible employees, even if they are currently inactive and receiving CEWS or CERB payments, but the leave will not protect them from layoff. Section 239.01(6) of the Canada Labour Code prohibits employers from laying off employees on a COVID-19 leave because they took the leave. This does not prohibit employers from laying off these employees for other, legitimate reasons, such as a shortage of work, as long as the provisions of the Collective Agreement are respected.

To clarify, if you bid the leave, and received the leave, the employer can not retaliate and lay you off out of sequence or unjustifiably, however they can lay you off if they follow the provisions of the Collective Agreement and it is justified.

This means that those employees who are going to continue to be active into the June 2020 block month are eligible for the COVID-19 leave should they meet the eligibility requirements.  For those of you who may be laid off, you should still be granted this leave, however as noted above, it will not insulate you from a layoff. We understand that this is not welcome news for some of our members, but please be mindful this leave was never encouraged by the Union as a form of mitigation. The mitigation options provided by Air Canada were clearly communicated by the Company.

For those of you that will be flying, or are currently flying, we have attached the terms and conditions along with the Company Q and A on the COVID leave.  Please note this is a Government initiated leave, supported by the Company and falls outside the Collective Agreement.  We encourage you to reach out to your management team if you have further questions on the application of the leave.

Thank you for all your support and multiple emails on this,