On Thursday, March 19, 2020, the Ontario Legislature passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (“the Bill”).
The Bill amends the Ontario Employment Standards Act (ESA) adding new job protection for employees affected by COVID-19. This job protection is retroactive to January 25, 2020.
What is the Leave and Do I Still Have to Pay My Employees?
The new leave allows eligible employees to not come to work, and keep their job, in the circumstances set out below.
Employees who are not at work because they are using this leave provision do not have to be paid. In many cases, they will be entitled to EI. Employees will remain entitled to their benefits while off under this leave.
If an employer terminated or laid off an employee who had asserted a right to this leave, the employer would be violating the ESA which protects an employee’s job in these circumstances.
How Long Does the Job Protection Last?
The right of the employee to not come to work, and be on this leave, lasts for as long as the declared state of emergency (under section 7.0.1 of the Emergency Management and Civil Protection Act) lasts.
Who Does the Leave Apply To?
Below you will see a long list describing who exactly is entitled to take this leave. The short version is that when there is a declared state of emergency, as there is now in Ontario, pretty much anyone who cannot come to work for some reason related to that state of emergency (self-quarantined as directed, taking care of someone who is sick, taking care of kids because daycares are closed etc) is entitled to the leave.
The amendments entitle eligible employees to a leave of absence without pay for the following reasons:
- Because of a declared emergency under section 7.0.1 of the Emergency Management and Civil Protection Act AND
- an order applies to him or her under section 7.0.2 of the Emergency Management and Civil Protection Act,
- orders include things like prohibiting travel or movement, closing public and private spaces
- because he or she is needed to provide care or assistance to any of the following individuals:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee or the employee’s spouse.
- A child, step-child or foster child of the employee or the employee’s spouse.
- A child who is under legal guardianship of the employee or the employee’s spouse.
- A brother, step-brother, sister or step-sister of the employee.
- A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
- A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
- A son-in-law or daughter-in-law of the employee or the employee’s spouse.
- An uncle or aunt of the employee or the employee’s spouse.
- A nephew or niece of the employee or the employee’s spouse.
- The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
- A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
- Any individual prescribed as a family member for the purposes of this section.
- because of such other reasons as may be prescribed; or
- because of one or more of the following reasons related to a designated infectious disease:
- The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
- The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
- The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
- The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
- The employee is providing care or support to an individual (as listed above) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or daycare closures.
- The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
- Such other reasons as may be prescribed.
- an order applies to him or her under section 7.0.2 of the Emergency Management and Civil Protection Act,
What Proof Does My Employee Need to Assert this Leave Entitlement?
An employer may require an employee who takes this leave to provide evidence reasonable in the circumstances and at a time that is reasonable in the circumstances to substantiate their entitlement to the leave. An employer cannot require an employee to provide a certificate from a qualified health practitioner (doctor, nurse etc.) as evidence.
What this reasonable evidence might look like is unknown, but it’s pretty safe to say that any employee who asserts an entitlement to this leave will get it. Right now we know that there is a state of emergency, we know that people are being told to stay home, to self-quarantine etc, that schools and daycares are closed and that the parents need to look after their children. Likely requiring an employee to provide any evidence under current circumstances would be unreasonable.
Can I Make My Employees Take this Leave?
Generally, your employee will need to meet the above criteria to take advantage of this leave and it will be up to the employee whether they want to go on this leave or not. Employers can, however, direct an employee not to attend work due to a concern about the spread of the infectious disease, in which case the employee may be placed on unpaid leave.
Can I Terminate or Lay Off Employees on this Leave?
If your employee is unable to attend work for one of the prescribed reasons – they are sick, in quarantine, stuck in another country, taking care of kids while schools are closed etc. – then terminating their employment or laying them off would be a violation of the ESA.
Employees on this leave will be entitled to return to their jobs at the end of the leave. Once they are no longer entitled to the leave (and the job protection provided by the leave), they may be terminated or laid off, however, we encourage you to get legal advice prior to issuing a layoff or a termination, particularly where it intersects with an ESA leave.
Please visit our Resources page for further updates and information on the impact, rules and best practices for addressing the global coronavirus outbreak in your workplace.
