Provincial Worker Job Protection Formalized – The Employment Standards Amendment Act (Infectious Disease Emergencies), 2020
In an emergency session on March 19, 2020, the Ontario legislature passed Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. Bill 186 amends the Employment Standards Act, 2000 (the “ESA”) to provide support for provincially-regulated employees including full-time, part-time, student, casual workers and temporary help agency assignment employees who are unable to work as a result of COVID-19.
Job-Protected Leave
The Act amends the Emergency Leave provisions of the ESA to provide an unpaid yet job-protected emergency leave for infectious disease emergencies such as COVID-19. Under the revised section 50.1, employees are entitled to an unpaid leave of absence if they will not be performing the duties of their position for the following reasons[i]:
The employee is under medical investigation, supervision or treatment related to COVID-19;
The employee is acting in accordance with an order under s. 22 or 35 of the Health Protection and Promotion Act that relates to COVID-19;
The employee is in quarantine or isolation or is subject to a control measure (such as self-isolation) implemented as a result of information or directions related to COVID-19 issued to the public by a public authority or public health official;
The employee is under a direction not to work given by their employer in response the employer’s concern that the employee may expose other individuals in the workplace to COVID-19;
The employee is providing care or support to a “specified individual”, as defined in the Act because of a matter related to COVID-19 including, but not limited to, a school or daycare closure; or
The employee is directly affected by travel restrictions related to COVID-19 and under the circumstances, cannot reasonably be expected to travel back to Ontario.
Required Documentation
Employees must advise their employer that they are taking this leave of absence either before they take it or, if not reasonable to do so, as soon as possible after beginning it. The Act expressly provides that a medical note is not required for an employee to qualify for or take this leave of absence. However, employers may require an employee who takes the leave of absence to provide “evidence reasonable in the circumstances” to show that the employee is entitled to the leave “at a time that is reasonable in the circumstances”. Such documentation may include a request for a note from a child’s daycare or evidence that an employee’s flight was cancelled by the airline in response to, or because of, COVID-19.
Length of the Leave of Absence
There is no legislated limit to the length of this leave of absence. Instead, the employee is permitted to be away on the Emergency Leave as long as they fall under the circumstances and reasons set out above and the infectious disease is designated as an infectious disease for the purpose of the Act.
Retroactive Effect
Entitlement to the new/revised leave of absence is retroactive to January 25, 2020, the date of the first presumptive case of COVID-19 that was documented in Ontario. This means that an employee may request this leave of absence from their employer for an eligible COVID-19-related absence from work from January 25, 2020 to the present day.
PH Tips
It is a difficult time for many individuals and businesses that are navigating through the COVID-19 pandemic. Employers should cooperate with their employees to coordinate and accommodate their request for a COVID-19-related Emergency Leave. Though not expressly required by the Act, we recommend employers proceed as follows:
Confirm the employee’s request for Emergency Leave in writing, including that it is a request related to COVID-19 and the date their leave of absence will commence;
Confirm with the employee that they are required to keep you updated on the status of their leave and their anticipated return to work date;
If the Emergency Leave is related to an employee’s requirement to respect a period of isolation, quarantine or self-isolation, ask your employee to keep you advised of any request to extend the Emergency Leave beyond the recommended 14-day isolation period;
Review and consider requests for Emergency Leave not only pursuant to this Act, but also your Accommodation Policy and obligations under the Ontario Human Rights Code; and
Continue at all times to comply with your obligation under Occupational Health and Safety legislation including, but not limited to, reporting all occupational illnesses, including COVID-19, to the Ministry of Labour, Training and Skills Development in writing within 4 days, and to notify their joint health and safety committee or a health and safety representative or trade union if an occupational illness, or the risk of such illness, exists.
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[i] While we reference COVID-19 here, the legislation references a “designated infectious disease”.
