Regulations Amending the Canada Worker Lockdown Benefit Act (Lockdown Order Definition and Minimum Lockdown Period): SOR/2021-276

Canada Gazette, Part II, Volume 156, Number 2

Registration
SOR/2021-276 December 29, 2021

CANADA WORKER LOCKDOWN BENEFIT ACT

P.C. 2021-1071 December 29, 2021

Her Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, pursuant to paragraphs 10(a) and (b) of the Canada Worker Lockdown Benefit Act footnote 1, makes the annexed Regulations Amending the Canada Worker Lockdown Benefit Act (Lockdown Order Definition and Minimum Lockdown Period).

Regulations Amending the Canada Worker Lockdown Benefit Act (Lockdown Order Definition and Minimum Lockdown Period)

Amendment

1 The definition lockdown order in section 2 of the Canada Worker Lockdown Benefit Act footnote 1 is replaced by the following:

lockdown order
means an order, regulation or other instrument that
  • (a) imposes, in the region specified in the order, regulation or other instrument, for reasons related to COVID-19, among other measures,
    • (i) during the period beginning on December 19, 2021 and ending on February 12, 2022, if made by an entity set out in paragraph (c) or (d) of the definition competent authority — provided the order, regulation or other instrument that it makes is acknowledged as being in compliance with this definition by the provincial or territorial government where the entity is located — or by an entity set out in paragraph (b) or (e) of the definition competent authority
      • (A) the closure to the public of premises where persons carry out commercial activities or provide services, that are not essential to preserving life, health, public safety or basic societal functioning,
      • (B) restrictions reducing by at least 50% the maximum number of persons that can enter or occupy premises where persons carry out commercial activities or provide services whether essential or not essential to preserving life, health, public safety or basic societal functioning, or
      • (C) a requirement that persons stay at home except for reasons that are essential to preserving life, health, public safety or basic societal functioning, or
    • (ii) during any other period, if made by a competent authority,
      • (A) the closure to the public of premises where persons carry out commercial activities or provide services that are not essential to preserving life, health, public safety or basic societal functioning, or
      • (B) a requirement that persons stay at home except for reasons that are essential to preserving life, health, public safety or basic societal functioning. (ordre de confinement)

Minimum Lockdown Period

2 For the purpose of subsection 3(2) of the Canada Worker Lockdown Benefit Act, the number of days is fixed at seven.

Coming into Force

3 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In September 2020, the Government of Canada introduced the Canada Recovery Benefit to provide financial support for workers who lost employment because of the COVID-19 pandemic. While economic recovery and labour market conditions have improved and employment has regained pre-pandemic levels, lockdown measures continue to be important in controlling the spread of COVID-19 in some regions. In October 2021, the Government of Canada announced the intention to introduce targeted benefits for workers who lose employment income in regions where public health lockdowns are occurring. The Canada Worker Lockdown Benefit Act (the Act), which received royal assent on December 17, 2021, was created to provide financial assistance in specified regions for specified periods of time, designated by order of the Governor in Council (GiC) on a case-by-case basis.

The Canada Worker Lockdown Benefit (CWLB) was initially intended to be a targeted benefit used regionally in the circumstances of full closures or stay-at-home orders. However, the rise in COVID-19 cases in mid-December 2021, driven by the highly transmissible Omicron COVID-19 variant, has resulted in enhanced public health measures in multiple regions, provinces, and territories concurrently. The CWLB is not currently designed to respond to the scale and nature of the current public health measures, given the narrow definition of “lockdown order” that does not account for the impact of widespread capacity restrictions.

To reflect the evolving COVID-19 context and the real-time impact of multiple public health measures across the country that are affecting workers, the Regulations Amending the Canada Worker Lockdown Benefit Act (Lockdown Order Definition and Minimum Lockdown Period) [the Regulations] are needed to amend the CWLB program to ensure that

Together, these changes will support the delivery of the CWLB in a timely manner to workers affected by COVID-19 public health measures.

The Regulations directly support the Government of Canada’s response to COVID-19, and the analytical requirements have been adjusted to permit a timely and effective response.

Objective

To expand eligibility and to ensure timely access to the CWLB to reflect the nature and volume of public health restrictions being introduced. These measures are intended to provide income support to Canadians, as they follow measures to stay safe in response to the Omicron variant.

Description and rationale

Recognizing that workers would still require financial support if a lockdown was imposed in a region to prevent the spread of COVID-19, the Government introduced Bill C-2, An Act to provide further support in response to COVID-19, which received royal assent on December 17, 2021. Bill C-2 enacted the Act which provides for the CWLB, available until May 7, 2022.

This benefit was designed to provide targeted and temporary income support to workers whose employment is interrupted by a designated COVID-19 public health lockdown. These payments provide income support to workers who have lost their employment or are unable to perform work as a self-employed person, or who have a reduction in income of at least 50%, due to a measure in a lockdown order.

The Act specifies that the GiC, on the recommendation of the Minister of Employment and Social Development (the Minister) may designate, by order, any region in Canada as a lockdown region, for a specific period. The Minister may make the recommendation to the GiC only if the Minister is of the opinion that it is in the public interest and that measures referred to in the definition of a “lockdown order” in section 2 of the Act have been in place in the designated region for at least 14 consecutive days.

The Act defines a “lockdown order” as an order, regulation or other instrument made by a competent authority for reasons related to COVID-19, where non-compliance with the measures is an offence or may result in the imposing of a sanction or penalty, and requires

This definition aligns with the original concept of the CWLB as a localized benefit that would only be available when needed to provide income support to workers whose employment is interrupted by government-imposed public health lockdown scenarios. However, the arrival and unprecedented spread of the Omicron COVID-19 variant have shifted the Canadian pandemic context: modelling from the Public Health Agency of Canada on December 10, 2021, forecast over 12 000 COVID-19 cases per day by early January 2022 if transmission levels were maintained and the Omicron variant successfully established itself —higher levels than seen during all of 2021. footnote 2

Since December 19, 2021, several jurisdictions have introduced province-wide public health measures in an effort to limit the spread of COVID-19. For example, restrictions in effect in Ontario as of Sunday, December 19, 2021, require 50% capacity reductions in bars, restaurants and other non-essential retail stores; and effective December 20, 2021, Quebec announced the complete closure of bars, taverns, gyms, spas and casinos, with restaurants allowed to remain open, but at 50% capacity. While some of these new public health orders are consistent with the definition of a lockdown order set out in the Act, others are not. In addition, the process for designating regions for the CWLB was designed for limited usage in targeted communities. With an increase in volume of public health measures across the country, the need to assess each public health order issued by a competent authority and monitor how these public health orders change, followed by the necessary legal process to designate regions under “lockdown order” risks substantial lags to CWLB availability.

To respond to the nature and volume of these new measures and ensure that impacted workers continue to receive the financial support they need, three regulatory changes are required under the GiC authority to make regulations under the Act.

Temporary change to the definition of “lockdown order”

The Regulations temporarily amend the definition of a “lockdown order” in section 2 of the Act to also include public health orders that limit public capacity to 50% or less on premises where non-essential or essential commercial activities or services are performed or offered. Paragraph 10(a) of the Act provides the GiC the authority to make this amendment, which repeals the current definition and replaces it with an updated definition that includes the capacity limits.

While not all of the recent public health measures constitute a full lockdown as currently defined in the Act, capacity restrictions risk having a comparable impact on workers, as some businesses may not be able to remain open at reduced capacity or could need to reduce their workforce, particularly for measures that are in place for several weeks.

To support timely responses to the volume of public health restrictions already in place and expected to be introduced in the coming weeks to respond to the spread of the Omicron variant, the “lockdown order” definition would also temporarily be amended so that orders made during the period between December 19, 2021, to February 12, 2022, would only meet the “lockdown order” definition if they are issued for regions, by either

The existing measures in the definition of lockdown orders, such as the closure to the public, of premises where persons carry out commercial activities or provide services that are not essential to preserving life, health, public safety or basic societal functioning, or a requirement that persons stay at home except for reasons that are essential to preserving life, health, public safety or basic societal functioning will continue to remain part of the expanded definition.

The expanded definition will be used to assess public health orders made during the period between December 19, 2021, and February 12, 2022, in support of the immediate public health response to the current rise in COVID-19 cases. The existing measures in the definition of lockdown orders will be retained to assess public health orders made before December 19, 2021, or after February 12, 2022.

Permanent change to requirement that lockdown orders be subject to consequences for non-compliance

Given the reasonable presumption of consequences to non-compliance with public health orders issued by competent authorities, the Regulations permanently remove the requirement set out in the Act that “lockdown orders” must stipulate that non-compliance is an offence or may result in a sanction or administrative monetary penalty. This amendment is made under the GiC authority of paragraph 10(a) of the Act.

Permanent change to required length of lockdown order

The Regulations fix the number of days for the purpose of subsection 3(2), which stipulates the number of consecutive days that the measures in a “lockdown order” must apply in respect of the region for the Minister to recommend that the GiC designate the region as a lockdown region, at seven. This permanent change lowers the number of days from the current 14 and better aligns with the requirements in other COVID-19 supports available to businesses. This amendment is made under the GiC authority of paragraph 10(b) of the Act.

Reducing this requirement would not shorten the timelines of the regulatory process for making the benefit available to affected workers, and will align with the requirements for the Local Lockdown Program for business supports.

These Regulations do not alter other parameters of the CWLB, and the benefit continues to be available retroactively (i.e. eligible workers can apply for benefits for up to 60 days following the end of the week, or for lockdown orders ending before December 17, 2021, 60 days from that date).

Consultation

Bill C-2, An Act to provide further support in response to COVID-19, received royal assent on December 17, 2021. Members of Parliament and senators examined the Bill as part of the legislative process and asked witnesses to provide their views on aspects of the CWLB contained in the legislation, including the process to designate lockdown regions. Generally, parliamentarians acknowledged the need to continue providing financial support to workers during the ongoing COVID-19 pandemic.

The CWLB has received public and media attention since it was announced on October 21, 2021. Initial reaction was primarily neutral and factual. There was some reaction to the announcement that the benefit would not be available to those who lost work due to non-compliance with their employer’s vaccination policies. As COVID-19 continues to surge due to the Omicron variant, public health officials have begun to implement stricter public health restrictions across the country. Following these restrictions, there has been increased attention on the CWLB. Namely, there is concern within the media that the current structure of the benefit is too restrictive and workers affected by public health restrictions may not be eligible.

On December 22, 2021, the Government of Canada announced that, “to better support individual workers in the face of the new Omicron variant,” it intends to use the regulatory authority provided in Bill C-2 to introduce new regulations that would expand the CWLB. The announcement confirmed that the Regulations would “include workers in regions where provincial or territorial governments have introduced capacity-limiting restrictions of 50 per cent or more” and will “apply from December 19, 2021, to February 12, 2022.”

The Regulations respond directly to the continuing and extraordinary economic circumstances posed by the COVID-19 pandemic. These measures need to be in place expeditiously to be effective. Consequently, consultations were not undertaken and the Regulations were granted an exemption from prepublication in the Canada Gazette, Part I.

Cost-benefit analysis

There are no anticipated costs associated with amending the Act through Regulations to change the “lockdown order” definition and the required duration of the “lockdown order,” as any costs associated with the Regulations would be captured by the future designations of lockdown regions.

Small business lens

Analysis under the small business lens concluded that the Regulations will not impact Canadian small businesses. No regulatory administrative or compliance burden on small businesses has been identified.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in the administrative burden on businesses.

Regulatory cooperation and alignment

The Regulations do not have implications for international agreements (trade, environmental, human rights, etc.), obligations, or voluntary standards. They are not aimed at minimizing or reducing regulatory differences, nor at increasing regulatory compatibility with another jurisdiction. They do not introduce specific Canadian requirements that differ from existing regulations in other jurisdictions for an international program. They do not seek to enable regulatory alignment with the United States as committed to under the Joint Action Plan for the Canada-United States Regulatory Cooperation Council.

Implementation

The Canada Revenue Agency (CRA) administers and enforces the recovery benefits programs and the CWLB on behalf of the Government of Canada and will utilize the same systems and processes for the CWLB as they were used for the administration of the recovery benefits. The CRA already has the infrastructure in place and the processing system is prepared to allow the CWLB benefits to be paid.

Existing implementation and enforcement mechanisms contained in the CRA’s adjudication and controls procedures will ensure proper implementation. These include, for instance, functionality to perform client accounting, withholdings, issuance of tax slips to applicants, support for individual eligibility and entitlement, tax assessment activities, and support for post-payment compliance and verification activities.

Health Canada will serve as the intake point of provincial and territorial acknowledgments. This streamlined process would ensure that the CWLB remains relevant and timely for affected workers, while provincial, territorial or Indigenous governments implement circuit-breaker measures in response to the Omicron COVID-19 variant.

The Regulations come into force upon registration.

Contact

George Rae
Director
Employment Insurance Policy
Skills and Employment Branch
Employment and Social Development Canada
140 Promenade du Portage, 7th Floor
Gatineau, Quebec
K1A 0J9
Email: george.rae@hrsdc-rhdcc.gc.ca