On March 19, 2020, Ontario’s Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (the “Emergency ESA”) received Royal Assent. These amendments particularly impact the Employment Standards Act, 2000 (the “ESA”)’s unpaid job protected leaves regime by expanding the Emergency Leaves. Emergency Leaves in Ontario were three:

• Sick Leave (up to three days per year);
• Family responsibility Leave (up to three days per year); and
• Bereavement Leave (up to two days per year).

While we have the Emergency ESA in force in Ontario, those employers and employees covered by the ESA will have the (unfortunate) opportunity to use two more justifications for unpaid job protected leaves (the “Coronavirus Leaves”).  These leaves are based on:

• Declared Emergencies; and
• Infectious Disease Emergencies.

The Coronavirus Leaves hopefully are temporary and are meant to allow employers to assist its employees to prioritize SARS-CoV-2 a.k.a. Coronavirus (or COVID-19) over work, if necessary. It also enables employers to protect its workplace from an infectious disease.  

Let’s review some questions about the Coronavirus Leaves: what – exactly – are the Coronavirus Leaves? To whom the Coronavirus Leaves apply? Do employees have to provide evidence about the Coronavirus Leaves? How long are the Coronavirus Leaves?

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Declared Emergency Leave

The Emergency ESA’s Declared Emergency Leave, which is sourced in a government official-based order that affects a specific employee, mandates employers to grant an unpaid leave of absence to that employee(s) who will not be performing the duties of his or her job because of:

• an emergency declared by the Lieutenant Governor in Council or the Premier – currently in force; and
• an order was made based on the:
• Emergency Management and Civil Protection Act (EMCPA);
• Health Protection and Promotion Act (HPPA);
• employee is needed to provide care or assistance to a specified individual (below); or
• any other reason that may be prescribed during the time of the Declared Emergency.

Designated infectious disease

The Emergency ESA's Designated Infectious Disease is sourced in a specific employee facing the Coronavirus. Employers must grant an unpaid leave of absence to an employee who will not be performing the duties of his or her job because he or she is:

• under individual medical investigation, supervision or treatment;
• acting in accordance with an order under the HPPA;
• in quarantine, isolation or is subject to a control measure directed by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, or a municipal council or a board of health;
• under an employer’s direction in response to its concern that the employee may expose other individuals to the infectious disease;
• providing care or support to a specified individual (below);
• directly affected by travel restrictions; or
• any other reasons that may be prescribed.

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Specified Individuals

The Coronavirus Leaves cover employees, whether because of a government official-based order that applies to that employee or because of an employee having or being expose to the Coronavirus.  It also applies when an employee must provide care or support to a specified individual.  The Emergency ESA added six groups of specified individuals for a total of 13. These are the employee’s spouse and/or:  

• parent, step-parent or foster parent of the employee or the employee’s spouse;
• child, step-child or foster child of the employee or the employee’s spouse;
• child who is under legal guardianship of the employee or the employee’s spouse;
• brother, step-brother, sister or step-sister of the employee;
• grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
• brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
• son-in-law or daughter-in-law of the employee or the employee’s spouse;
• uncle or aunt of the employee or the employee’s spouse;
• nephew or niece of the employee or the employee’s spouse;
• spouse of the employee’s grandchild, uncle, aunt, nephew or niece;
• person who considers the employee to be like a family member;
• individual prescribed as a family member for the purposes of this section.

If an employee requests an unpaid job protected Coronavirus Leave of absence in relation to these Specified Individuals, the employer must grant the Coronavirus Leave.  

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Evidence

The Emergency ESA allows employers to ask the employee to support their Coronavirus request with any evidence reasonable in the circumstances. The Emergency ESA is not specific as to what the employer can ask for, as long as it is a reasonable request.

It also tells employers to be flexible as to when to expect the reasonable evidence requested, at a time that is reasonable.

The Emergency ESA has one prohibition though.  Employers cannot ask for a certificate from a qualified health practitioner as evidence, when the employee is asking for the leave because he, she or a Specified Individual is exposed in some way to the coronavirus requiring the leave.  

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Length of the Coronavirus Leaves

The three usual emergency leaves - sickness, family emergency and bereavement - lasts a few days. The length of the Coronavirus Leaves is unpredictable.  

In case of a government official-based order supported by the declared emergency, the leave will end on the day the emergency is terminated or disallowed.

In case of an individual emergency for the coronavirus, the leave will last for as long as the circumstances referred above, i.e. being in quarantine or self-isolation, or providing care or support to a Specified Individual, remain in place.

Do you have a workplace policy to manage the Coronavirus and any other infectious disease?

Antonio F. Urdaneta - antonio@workplacelegal.ca - is a marathon runner, a workplace lawyer, investigator, compliance coach, and thought leader at Workplace Legal.  He uses coaching skills and tools to inform, advice and represent workplaces in digital and physical legal challenges and endeavours.  He writes his own posts.

For health guidance/information about the Coronavirus please visit the Government of Canada site.

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