Ontario government responds to concerns over ‎COVID-19’s impact on workplaces with new leave of absence measures (Canada)

Architectural Stairs

Employment Alert

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In an emergency session of the legislature on March 19, 2020, the Ontario government enacted Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (the “Infectious Disease Emergencies Act”). The Infectious Disease Emergencies Act entitles an employee to a leave of absence without pay in the event the employee is unable to perform the duties of the employee’s position because of various reasons related to a designated infectious disease. The Infectious Disease Emergencies Act, which is immediately in force, is the latest response by the Ontario government to the growing concern over COVID-19’s impact on Ontario workplaces. 

The Infectious Disease Emergencies Act repeals and replaces the previous declared emergency leave provisions under Section 50.1 of the Ontario Employment Standards Act, 2000 (the “ESA”). Prior to the enactment of the Infectious Disease Emergencies Act, an employee was entitled to a leave of absence without pay in certain circumstances related to an emergency declared under the Emergency Management and Civil Protection Act. Such entitlement remains in effect under the Infectious Disease Emergencies Act. But employees will now additionally be entitled to a job-protected leave of absence if the employee is unable to work for any of the following reasons:

  • The employee is under medical investigation, supervision or treatment related to a designated infectious disease (e.g. COVID-19);
  • The employee is in quarantine or isolation, or is subject to a control measure (including, but not limited to, self-isolation), based on the information or direction of 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;
  • The employer directs the employee to take a leave of absence due to a concern that the employee may expose other individuals in the workplace to a designated infectious disease (e.g. COVID-19);
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act;
  • The employee is directly affected by travel restrictions related to the designated infectious disease (e.g. COVID-19) and, under the circumstances, cannot reasonably be expected to travel back to Ontario; and/or
  • The employee is providing care or support to a prescribed family member because of a matter related to the designated infectious disease (e.g. COVID-19) that concerns the family member. Such matters of concern include, but are not limited to, school or daycare closures.

There is no limit to the number of days an employee may be absent from work due to the above reasons, subject only to the infectious disease (e.g. COVID-19) remaining designated by the regulations for the purposes of Section 50.1 of the ESA. The Infectious Disease Emergencies Act also prohibits an employer from requiring an employee to provide a medical note if the employee requests leave for such reasons. However, the employer may require the employee to provide other evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances.

To view the complete Infectious Disease Emergencies Act, click here.

In the backgrounder to the Infectious Disease Emergencies Act, the Ontario government stated that the new leave of absence measures under the Infectious Disease Emergencies Act are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. Such measures will remain in place until COVID-19 is “defeated”. 

For further information, please consult our Coronavirus Resource Centre or contact any member of our DLA Piper Canadian Employment and Labour Law Service Group. 

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.