On March 19, 2020, the Ontario government gave royal assent to the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (introduced as Bill 186) to address when emergency leave is available to employees in case of infectious disease emergencies, such as COVID-19.
Section 50.1 (1) of the ESA is amended and is now called Emergency Leave: Declared Emergencies and Infectious Disease Emergencies.
The amendments set out the circumstances in which an employee is entitled to a leave of absence without pay where the employee cannot perform the duties of their position for reasons related to a designated infectious disease: An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position,
- because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and,
- because of an order that applies to him or her made under section 7.0.2 of the Emergency Management and Civil Protection Act,
- because of an order that applies to him or her made under the Health Protection and Promotion Act,
- because he or she is needed to provide care or assistance to a family member identified in the legislation, or
- 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 [a family member identified in the legislation] because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care 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.
“Designated infectious disease” means an infectious disease designated by the regulations for the purposes of this section.
“Public health official” means, (a) within the meaning of the Health Protection and Promotion Act, (i) the Chief Medical Officer of Health or Associate Chief Medical Officer of Health, (ii) a medical officer of health or an associate medical officer of health, or (iii) an employee of a board of health, or (b) a public health official of the Government of Canada.
“Qualified health practitioner” means, (a) a person who is qualified to practise as a physician or nurse under the laws of the jurisdiction in which care or treatment is provided to the employee or an individual described in subsection (8), or (b) in the prescribed circumstances, a member of a prescribed class of health practitioners.
Employers are entitled to request from the employee supporting evidence reasonable in the circumstances, and at a time that is reasonable in the circumstances, that the employee is entitled to the leave. For an infectious disease emergency, the employer may not request a medical certificate. The leave may last for a period up to the end of the declared emergency or designated infectious disease.
The provisions clarify that an employer may direct an employee to not attend the workplace due to a concern about the spread of the infectious disease, in which case the employee may be placed on unpaid leave. The legislation also provides the Lieutenant Governor in Council with the ability to make regulations related to emergency leaves, declared emergencies, infectious disease emergencies, including the ability to extend the above leave entitlement.
On April 15, 2020, the Ontario Ministry of Labour has posted a guide on the Employment Standards Act, 2000‘s new infectious disease emergency leave. The guide includes information on, among other topics, the reasons that the employee may take an infectious disease emergency leave, proof that may be requested by an employer, and information about how absences prior to March 19, 2020 will be addressed. The guide can be found here.
On May 19, 2020, the government has made a new regulation under the Employment Standards Act, 2000 (ESA). Under this new regulation, a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work because of COVID-19 is deemed to be on a job-protected Infectious Disease Emergency Leave.
Entitlement to emergency leave is during the COVID-19 period.
“COVID-19 period” means the period beginning on March 1, 2020 and ending on the date that is six weeks after the day that the emergency declared by Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act is terminated or disallowed.