Ontario's COVID-19 employment standards amendments come into force

Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, received Royal Assent and came into force on March 19, 2020. The Bill amends the Employment Standards Act, 2000 to address when emergency leave is available to employees in case of infectious disease emergencies, such as COVID-19. The Bill is available here.

The amendments set out the circumstances in which an employee is entitled to a leave of absence without pay where the employee cannot perform the duties of their position for reasons related to a designated infectious disease:

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,

1. because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and,
   1. because of an order that applies to him or her made under section 7.0.2 of the Emergency Management and Civil Protection Act,
   2. because of an order that applies to him or her made under the Health Protection and Promotion Act,
   3. because he or she is needed to provide care or assistance to [a family member identified in the legislation], or
   4. because of such other reasons as may be prescribed; or
2. because of one or more of the following reasons related to a designated infectious disease:
   1. The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
   2. The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
   3. The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, 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.
   4. The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
   5. The employee is providing care or support to [a family member identified in the legislation] because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
   6. 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.
   7. Such other reasons as may be prescribed.

Employers are entitled to request from the employee supporting evidence reasonable in the circumstances, and at a time that is reasonable in the circumstances, that the employee is entitled to the leave.  For an infectious disease emergency, the employer may not request a medical certificate.  The leave may last for a period up to the end of the declared emergency or designated infectious disease.

Notably, the provisions clarify that an employer may direct an employee to not attend the workplace due to a concern about the spread of the infectious disease, in which case the employee may be placed on unpaid leave.

The legislation also provides the Lieutenant Governor in Council with the ability to make regulations related to emergency leaves, declared emergencies, infectious disease emergencies, including the ability to extend the above leave entitlement.

To learn more about workplace strategies for communicable illnesses and handling COVID-19 in your workplace, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.