Ontario Employees: Unpaid Job-Protected Emergency Leave Available to Those Affected by the COVID-19

The content of this post is constantly updated and it presents the most recent information as of June 29, 2020.

On March 17, 2020, the Ontario government declared an emergency under s 7.0.1 (1) the Emergency Management and Civil Protection Act. On June 24 2020, Ontario extended the declaration of emergency until July 15, 2020.

On June 24, 2020, Ontario announced that along with the rest of Ontario, Toronto can enter stage two of the reopening, in our article Toronto Stage 2: Information for Employees we discuss some of the most frequent concerns. Read some helpful pointers of what employers should consider at Ontario Reopening Plan: How to Return to Work after COVID-19.

The government has prohibited all organized public events of over 5 people, including parades, events and communal services within places of worship. On June 12, 2020, gatherings of up to 10 people will be allowed and places of worship will be allowed to open with a limit of 30 persons and respecting social distancing.

Employees of establishments closed by the Government’s order, those in quarantine, self-isolation, unable to return to Ontario or caring for their families should benefit from the Emergency Leave. Also, those laid off or whose hours or pay has been slashed due to the pandemic will be deemed to be on an Infectious Disease Emergency Leave. Read about these unpaid, job-protected leaves below.

Following the provincial emergency declaration, the Ontario legislature enacted amendments to the Employment Standards Act, 2000 (“ESA”) to provide some job protection to those affected by COVID-19.  The legislature acted with remarkable speed to pas Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020.  The bill went through three readings and Royal Assent all in one day on March 19, 2020. On the same day, COVID-19 was designated an infectious disease for the purpose of the Emergency Leave under the ESA.

Employees Laid Off or Whose Hours of Pay Have Been Reduced Since March 1, 2020

On May 29, 2020, the Ontario government issued a significant regulation, O. Reg. 228/20 to broaden the scope of the Infectious Disease Leave described below. Any employee who does not perform the duties of their position in relation to an infectious disease related to a novel coronavirus between March 1, 2020 and 6 weeks following the Declaration of Emergency will be deemed to be on an Infectious Diseases Emergency Leave.  More information on the new regulation can be found in our article, Ontario curtails right to claim constructive dismissal for COVID-19 layoffs.

The new regulation limits the statutory rights of employees, however, common law remedies still remain available and concerned employees should consult professional advice. An employee who has been provided with written notice of termination of their employment is not on an Infectious Diseases Emergency Leave.

Employees are entitled not to come to work if unable to perform their duties because of COVID-19

Ontario employees may now be entitled to an unpaid Emergency Leave. Section 50.1 of the Ontario Employment Standards Act, 2000 (ESA) provides for a leave of absence in a declared emergency or infectious disease emergency. These provisions are where an employee is unable to perform the duties of their own position because either of a declared emergency (“Declared Emergency Leave”) or because of certain reason related to an infectious disease (“Infectious Disease Emergency Leave”).

To access the Emergency Leave, employees are required to notify their employer that they are taking such a leave. However, in the present circumstances, failure to notify will very likely not disentitle the employee from the Emergency Leave.

Declared Emergency Leave

To be entitled to the unpaid Declared Emergency Leave, generally, employees must be unable to work because either:

a) they are subject to an order under the Emergency Management and Protection Act;
b) they are subject to an order under the Health Protection and Promotion Act;
c) they are needed to provide care or assistance to a specified individual.

Generally, the Declared Emergency Leave will generally end when the declared emergency is terminated or disallowed under the Emergency Management and Protection Act.

Infectious Disease Emergency Leave

Employees are entitled to the Infectious Disease Emergency Leave because of a reason related to COVID-19 as of January 25, 2020.

To be entitled to the unpaid Infectious Disease Leave, generally, employees must be unable to work because of one of the following circumstances related to a designated infectious disease:

a) The employee is under individual medical investigation, supervision or treatment;
b) The employee is acting in accordance to an order of a medical officer of health or a court under the Health Protection and Promotion Act;
c) The employee is in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health;
d) The employer directs the employee to stay at home because of concerns that the employee might expose other individuals in the workplace to the designated infectious disease;
e) The employee is providing care to a specified individual, including because of closures of schools and daycares; or
f) The employee is directly affected by travel restrictions preventing the employee from returning to Ontario.

Employees are entitled to the Infectious Disease Emergency Leave as long as the circumstances triggering the leave continue and the infectious disease is designated by the Ontario Regulations. Employees will be entitled to different lengths of Emergency Leaves depending on their circumstances. For example an employee unable to return to Ontario due to travel restrictions may be entitled to a longer leave than an employee subject to a 14 days self-isolation.

Doctor’s notes are not required to access the Infectious Disease Emergency Leave. Employers are expressly prohibited from requiring an employee to provide a certificate from a qualified health practitioner as evidence to justify such a leave.

No reprisal for taking the Emergency Leave and benefit continuance

The Ontario Employment Standards Act prohibits reprisal against employees for accessing Declared Emergency Leave. Generally, employees who are entitled to a leave of absence under the ESA cannot be laid off during the leave and should be reinstated at the end of the leave. Additionally, the employer should continue benefits and contribution payments to pension plans, life insurance plans, accidental death plans, extended health plans, dental plans while the employee is on leave.

Caregivers

Employees who must care for their children and are unable to work because of the daycares closures could be entitled to take an unpaid Emergency Leave.

Under the ESA, the unpaid Emergency Leave would be available to employees who need to provide care or assistance to:

  1.  The employee’s spouse;
  2. A parent, step-parent or foster parent of the employee or the employee’s spouse;
  3.  A child, step-child or foster child of the employee or the employee’s spouse;
  4.  A child who is under legal guardianship of the employee or the employee’s spouse;
  5.  A brother, step-brother, sister or step-sister of the employee;
  6.  A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
  7. A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
  8. A son-in-law or daughter-in-law of the employee or the employee’s spouse;
  9.  An uncle or aunt of the employee or the employee’s spouse;
  10.  A nephew or niece of the employee or the employee’s spouse;
  11. The spouse of the employee’s grandchild, uncle, aunt, nephew or niece;
  12. A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.

Monkhouse Law is an employment law boutique and is particularly equipped to guide employees during these stressful times. If we can help, give us a call.

Call us for a FREE 30 minute phone consultation at 416-907-9249 or submit a callback request

    Free Consultation

    Call us for a free 30 minute phone consultation at 416-907-9249 or submit a callback request. We endeavor to phone you back once we have reviewed the information, calls will be Monday to Friday between 9:00 AM and 5:00 PM:


    YesNo

    Monkhouse Law