THE EMPLOYERS' EDGE
COVID-19: Ontario Passes Employment Standards Amendment Act (Infectious Disease Emergencies), 2020
On March 19, 2020, the government of Ontario passed Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives. Employers are prohibited from requesting medical notes from employees seeking to access this new leave.
As initially announced by Premier Ford on Monday, the infectious disease emergency leave is available for employees unable to work for any of the following reasons:
- The employee is under medical investigation, supervision or treatment for COVID-19.
- The employee is acting in accordance with an order under the Health Protection and Promotion Act.
- The employee is in isolation or quarantine in accordance with public health information or direction.
- The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.
- The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
- The employee is prevented from returning to Ontario because of travel restrictions.
Employees will also be able to utilize this leave to care for 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.
These measures are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. The newly introduced leave is intended to remain in place as long as COVID-19 remains designated as an infectious disease emergency by regulation and the employee remains unable to attend at work due to one of the circumstance outlined above. Practically what this means is that different employees may have significantly different leave entitlements based on their individual circumstances. As an example, an employee who is required to self-isolate for 14 days would be entitled to a leave for the duration of that period and may then be able and expected to return to the workplace. An employee with care obligations related to a school closure, in contrast, may be entitled to remain on leave for a significantly longer period of time.
While employees are not required to provide a medical note if they need to take infectious disease emergency leave, an employer may require that other evidence that is reasonable in the circumstances be provided to justify the leave. This could be a note from the daycare or for evidence that the airline cancelled a flight, but not a medical note.
Importantly, the introduction of this new, job-protected leave does not necessarily alter an employer’s existing obligations regarding paid absences under workplace policies or collective agreements, which must be considered before making decisions on staffing reductions.
As the situation continues to evolve, CCPartners will be watching for how the COVID-19 related Employment Insurance adjustments, outlined here, might mirror or diverge from the Employment Standards Amendment Act with respect to access to Employment Insurance benefits, the waiver of the one week waiting period, and what the proposed economic measures might mean for employers when they are finalized.
If you have any questions or concerns about these measures or other challenges related to COVID-19, the expert team at CCPartners is here to help. We are actively monitoring all Canadian jurisdictions for similar employment-related developments and will be providing a detailed update in that regard in the coming days.