Further to our previous Newsletter, on March 19, 2020, the Ontario Legislature passed Bill 186 amending the Employment Standards Act, 2000 (“ESA”). Provincially regulated employees are now entitled to unpaid job protected leave during a (1) declared emergency or (2) designated infectious disease emergency. This leave can last as long as the employee is unable to perform their job duties or until the day the emergency ends.
Infectious Disease Emergency
The employee generally qualifies for the leave if they are not performing their duties because the employee is:
- under medical investigation, supervision or treatment related to the infectious disease;
- acting on a prescribed order under the HPPA, like we are experiencing with COVID-19;
- in quarantine, isolation or subject to a control measure (which may include self-isolation) and the quarantine, isolation or control measure was implemented as a result of information related to the infectious disease (i.e. COVID-19) issued to the public by a designated individual such as public health official, health practitioner or government;
- under a direction from their employer in response to the employer’s concern that the employee may expose other individuals in the workplace to the infectious disease;
- providing care or support to a prescribed individual (including, for example, family members and individuals who consider the employee to be like a family member) because of a matter related to the infectious disease, including, but not limited to, school or day care closures; or
- affected by travel restrictions related to the infectious disease and cannot reasonably be expected to travel back to Ontario.
The employee generally qualifies for the leave if they are not performing their duties because of an order that applies to them made under the HPPA or section 7.0.2 of the EMCP or because they are needed to provide care/assistance to a prescribed individual (including, for example, family members and individuals who consider the employee to be like a family member).
An employer is prohibited from requiring a medical note from an employee who takes this leave. However, employers may ask for reasonable evidence, at a time that is reasonable in the circumstances.
Bill 186 states that this emergency leave can be retroactive. Though not outlined in the Bill, the government’s newsroom release on March 16, 2020 advised that the leave would be retroactive to January 25, 2020.
This new leave has implications for employers that should be considered during the decision-making process throughout the COVID-19 pandemic. The lawyers at Heeney Vokey LLP are here for any of your ESA-related questions or concerns.