Province of Ontario declares an emergency as a result of COVID-19

The Government of Ontario recently announced that it is declaring a state of emergency under section 7.0.1 (1) the Emergency Management and Civil Protection Act (“the EMCPA”). The Premier has indicated that this measure has been adopted with a view to using every power possible to continue to protect the health and safety of the Ontario public and to assist the health care sector in the fight to prevent the spread of COVID-19.

Pursuant to the declaration, the Government has ordered the immediate closure of the following establishments:

• facilities providing indoor recreational programs
• public libraries
• private schools as defined in the Education Act
• licensed child care centres
• bars and restaurants, except to the extent that such facilities provide takeout food and delivery
• theatres including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies
• concert venues

The Government has also prohibited the holding of organized public events of over 50 people, including parades, events and communal services including places of workshop.

These orders will remain in effect until March 31, 2020, at which time the Provincial Government will make an assessment of the COVID-19 crises.

The Ontario government also announced additional funding in response to the COVID-19 outbreak, including for the health sector, long-term care sector and developmental services sector.

Declarations under the Emergency Management and Civil Protection Act – What Does it Mean?

The Premier of Ontario can declare an emergency where the following criteria are satisfied:          

1. There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.
2. One of the following circumstances exists:

(i) The resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay.

(ii) The resources referred to in subparagraph (i) may be insufficiently effective to address the emergency.

(iii) It is not possible, without the risk of serious delay, to ascertain whether the resources referred to in (i) above can be relied upon.

“Emergency” is defined in the EMCPA  as a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise. (The definition  would clearly encompass COVID-19).

Under this legislation, the Premier is empowered during a declared state of emergency, to issue orders which are “necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property” where such an order will alleviate the risk. The Premier may adopt measures which are considered to be necessary in order to “prevent, respond to or alleviate the effects of the emergency.”

Failure to comply with orders that are made under the legislation can result in the imposition of significant fines. 

Employers should also be aware of the impact of a Declared Emergency on the The Employment Standards Act

The Employment Standards Act, 2000 (ESA) provides for a leave of absence when an emergency has been declared.

Section 50.1 of the ESA provides as follows:

An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act

If certain criteria are satisfied, employees can claim an entitlement to an unpaid “Declared Emergency Leave.” This leave provides employees with a right to a leave of absence without pay where the employee is unable to perform his/her employment duties as a result of a “declared emergency”.

In order to qualify for this unpaid leave, employees must be unable to work because:

1. they are subject to an order under the Emergency Management and Civil Protection Act
2. they are subject to an order under the Health Protection and Promotion Act
3. they are needed to provide care or assistance to a specified individual
4. such other reasons as may be prescribed

There will be employees who will seek leaves of absence pursuant to item 1 above as the Province has ordered that an number of  specified business must be closed. Employees in these businesses will be entitled to an unpaid job protected leave of absence.

The second point indicated above, pertains to the Health Protection and Promotion Act, which empowers medical officers of health to order that individuals  take, or refrain from taking, any action that are specified in such orders where the officer is of the opinion that a communicable disease exists or may exist or that there is a risk of an outbreak of a communicable disease, and that the disease presents a risk to the health of others. Orders that can be made include isolation, quarantine, and closure of the premises in which the outbreak occurred.  

The third point that is indicated above applies to the list of employees who are covered under the family responsibility leave provisions of the ESA:

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 grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse
5. The spouse of a child of the employee
6. The employee’s brother or sister
7. A relative of the employee who is dependent on the employee for care or assistance

Pursuant to this provision, employees who are unable to attend at work because of childcare issues that have arisen as a result of the closure of schools or of daycare facilities could pursue an unpaid Declared Emergency Leave in order to look after a child (as referred to in item 2 above).

The ESA prohibits the imposition of reprisals against employees by their Employer  for having pursued a Declared Emergency Leave, in the same way that  other job-protected leaves under ESA are protected.

During a Declared Emergency Leave employees’ benefits must be continued during the leave provided that the employee pays their portion of the benefit premiums in workplaces in which there is a benefit premium sharing arrangement. This is the same requirement that applies to other statutory protected leaves in the ESA.

The crises in Ontario and throughout the world continue to evolve. The Federal and Provincial Governments are closely overseeing the management of this outbreak and responding quickly with strategies that are intended to control the spread of the virus and the impact that it could have on the Ontario health care system. Our Labour Relations and Employment Law Group is carefully monitoring changes to legislation policy as they unfold and will advise our clients promptly with respect to the impact that these changes will have on workplaces.

If you have any questions about COVID-19 and your workplace, or any other human resource law issue, please contact a member of our team. For more information about dealing with COVID-19, please visit our COVID-19 Resource Center.