Province of Ontario introduces amendments to the Employment Standards Act to protect workers during the COVID-19 crises

The Federal and Provincial Governments continue to respond to the COVID-19 crises that has affected Ontarians. Changes in legislation, policies, and recommendations are being presented almost daily.

On March 19th, 2020, the Province introduced new legislation, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. The amendments supplement and replace certain provisions (described in our publication on March 19, 2020) that came into effect under the Employment Standards Act, 2000 ("ESA”) after the Province declared a state of emergency (which gave rise to employees’ ability to seek leaves of absence after making a request for a declared emergency leave to their employer). 

The most recent amendments broaden the circumstances in which an employee can take a leave of absence. In essence, the amendments seek to ensure that, regardless of the reason for the employee having to miss work due to the current COVID-19 pandemic, the employee will be entitled to a job protected leave of absence. The amendments are in addition to the emergency leave for declared emergencies that were already in effect under the ESA, and the job protection is retroactive to January 25th, 2020.

The specific provisions are as follows:

An employee will be entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position for any one of the following reasons: 

(a) because of an emergency declared under the Emergency Management and Civil Protection Act and,

(i) because of an order that applies to him or her made under the Emergency Management and Civil Protection Act,

(ii) because of an order that applies to the employee that is made under the Health Protection and Promotion Act,

(iii) because he or she is needed to provide care or assistance to an individual which includes a number of categories of individuals which include the employee’s spouse, parents, children, siblings, grandparents, siblings-in-law, aunts/uncles, nephews, nieces, and, persons who consider the employee to be like a family member. The individuals include the family members of the employee’s spouse’s family as well.  

(b)  because of one or more of the following reasons related to a designated infectious disease:

(i) The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.

(ii) The employee is acting in accordance with an order the Health Protection and Promotion Act that relates to the designated infectious disease.

(iii) The employee is in quarantine or isolation or is subject to a control measure (which may include self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease that is issued to the public, in whole or in part, 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, whether through print, electronic, broadcast or other means.

(iv) The employee is directed by the employer in response to a concern of the employer 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 defined group of individuals because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.

(vi) The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario. 

Employers may require employees who take a leave for one of the reasons referred to above, to provide evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances in support of a leave of absence. An Employer cannot however require an employee to provide a physician’s medical certificate as evidence.   

The length of the leave of absence arising out of an emergency leave can last for the duration of the period that the employee is not performing their employment duties for any of the reasons that are set out in the statute.

The Province has not ruled out the introduction of additional changes and appears to be aggressively adopting measures which are intended to facilitate the need for employees to take leaves of absence that are linked to the virus outbreak without putting their employment at risk.

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.