On March 19, 2020, the government of Ontario passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which amended the Employment Standards Act, 2000 (“ESA”) to include the new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies. This job-protected leave deals with two types of emergencies: declared emergencies and infectious disease emergencies and applies to certain employees who are unable to work due to COVID-19 related issues, including: being under medical investigation, supervision, treatment, or quarantine, having to care for an individual for a reason related to COVID-19, being instructed by an employer to remain home due to concerns of COVID-19 spreading in the workplace, and travel restrictions preventing the employee from returning to Ontario.
The Ontario government also implemented Ontario Regulation 66/22, which states that COVID-19 is an infectious disease for the purpose of the leave.
In this video and the blog Aneesha Lewis provides an overview of the changes under the new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies and some examples of possible situations that may be covered by it.
An employee is entitled to a leave of absence without pay for a Declared Emergency if the employee is unable to work because of an emergency declared under the Emergency Management and Civil Protection Act (“EMCPA”) and because:
(i) the employee is subject to an order made under section 7.0.2 of the EMCPA;
(ii) the employee is subject to an order made under the Health Protection and Promotion Act;
(iii) the employee is needed to provide care or assistance to an specified individual; or,
(iv) such other reasons as may be prescribed.
Infectious Disease Emergencies
The Infectious Disease Emergency leave applies when an employee unable to work because of one or more of the following reasons related to a designated infectious disease, which, as mentioned above, includes COVID-19:
(i) The employee is under individual medical investigation, supervision or treatment.
(ii) The employee is acting in accordance with an order under the Health Protection and Promotion Act.
(iii) The employee is in quarantine or isolation or is subject to a control measure, which can include self-isolation, that was implemented as a result of information or directions issued 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.
(iv) The employee is directed to stay home by his or her employer due to a concern that the employee may expose other individuals in the workplace to the designated infectious disease.
(v) The employee is providing care or support to a specified individual because of a matter related to the designated infectious disease, which can include closures of schools and daycare.
(vi) The employee is directly affected by travel restrictions unable to travel back to Ontario.
(vii) Any other prescribed reason.
The “specified individuals” mentioned in both the Declared Emergencies and Infectious Disease Emergencies sections above include:
- 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.
An employee’s entitlement to the Infectious Disease Emergency part of the Emergency Leave because of COVID-19 issues is retroactive to January 25, 2020.
The employee remains entitled to the leave as long the emergency remains, or the employee remains unable to work for the reasons outlined above related to the infectious disease and that the infectious disease continues to be classified as an infectious disease.
Employers are prohibited from requesting a medical note as evidence from an employee who needs to take the Infectious Disease Emergencies leave. However, for both the Infectious Disease Emergencies and Declared Emergencies leaves, employers are able to request evidence reasonable in the circumstances, at a time that is reasonable in the circumstances, that the employee is entitled to the leave.
This evidence may include, but is not limited, to a note from the daycare stating its closure or proof flight cancellations.
For more advice or information about your rights as an employee or your responsibilities as an employer when it comes to the Emergency Leave: Declared Emergencies and Infectious Disease Emergencies, contact us today by email or call us at 905-477-7011. Sign up for our newsletter to receive up-to-date COVID-19 information, including new legislation and Court decisions impacting your workplace. Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help.
Please note that this article is for informational purposes only and does not constitute legal advice.
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