In response to the escalating COVID-19 crisis, on March 17, 2020, the Government of Ontario declared an emergency under the Emergency Management and Civil Protection Act.  Two days later, Ontario’s Legislature held an emergency session in which it immediately enacted the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (Bill 186). Bill 186 amends Ontario’s Employment Standards Act, 2000 to create the new Emergency Leave: Declared Emergencies and Infectious Disease Emergencies. This new leave covers two separate emergency situations in which an employee may be on unpaid leave from work: Declared Emergencies and Infectious Disease Emergencies. 

The same day that Bill 186 was enacted, pursuant to Ontario Regulation 66/20, the following were designated as infectious diseases for purposes of the new leave: Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and Coronavirus (COVID-19). 

Bill 186 provides that the designation of the infectious disease may be retroactive.  The government’s Backgrounder released on March 16, 2020, indicated that the COVID-19 designation would be retroactive to January 25, 2020, the date on which the first presumptive COVID-19 case was confirmed in Ontario. 

Declared Emergencies

Employees are entitled to an unpaid leave of absence when an emergency is declared under the Emergency Management and Civil Protection Act (EMCPA), and the employees cannot work because:

1. They are subject to an order under the EMCPA;
2. They are subject to an order under the Health Protection and Promotion Act (HPPA);
3. They are needed to provide care or assistance to a specified individual; or
4. Such other reasons as may be prescribed.

Under the amended leave, the list of “specified individuals” in item #3 above has been expanded to include:

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.
13. Any individual prescribed as a family member.

Infectious Disease Emergencies

The new unpaid Infectious Disease Emergency Leave applies when the government designates an infectious disease by regulation, and an employee will not be performing work for one or more of the following reasons in relation to the designated infectious disease:

1. The employee is under individual medical investigation, supervision or treatment.
2. The employee is subject to an order of a medical officer of health or a court under the HPPA.
3. 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.
4. The employer directs the employee to stay at home because of concerns that the employee might expose others in the workplace to the designated infectious disease.
5. The employee is providing care to any of the specified individuals listed above, including because of closures of schools and daycares.
6. The employee is directly affected by travel restrictions preventing the employee from returning to Ontario.
7. Any prescribed reason.

Duration of Entitlement to the Leave

Entitlement to the new Emergency Leave continues until termination of the emergency, or as long as the circumstances listed above apply and the disease continues to be a designated infectious disease.

Providing Evidence of Entitlement to the Employer

Employers are prohibited from requiring an employee to provide a certificate from a qualified health practitioner as evidence of entitlement to the Infectious Disease Emergency Leave.  However, for both the Declared Emergency Leave and the Infectious Disease Emergency Leave, employers are entitled to verify the leave by requiring “evidence reasonable in the circumstances,” “at a time reasonable in the circumstances”.

Bottom Line for Employers

Now that the Government of Ontario has declared an emergency and created a new Infectious Disease Emergency Leave, many employees in the province are on job-protected leave from their employment.  Simultaneously, many employers have temporarily laid off their employees or are considering it.  It is important for employers to consider how the new job-protected leave operates in the context of a layoff.  This will involve a complex analysis that should be conducted with the support of a legal advisor.