Earlier this week, the Ontario government announced its intention to introduce legislation to amend the Employment Standards Act2000 (“ESA”), to provide job-protected leave to all employees impacted by COVID-19.

On March 19, 2020, the government passed Bill 186: Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, under which all employees covered by the ESA are now entitled to unpaid, job-protected leave during a formally declared or designated infectious disease emergency. This leave may last for the entire period an employee is unable to perform their job duties for reasons prescribed under the ESA or until the day the emergency is said to end.

In the event of a declared emergency under the Emergency Management and Civil Protection Act or a designated infectious disease emergency such as COVID-19, employees are entitled to this job-protected leave of absence, if they are unable to work for the following reasons:

Declared Emergency Leave

  • The employee is acting in accordance with an order under the Emergency Management and Civil Protection Act.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  • The employee needs to provide care or assistance to an individual impacted by the declared emergency.

Infectious Disease Emergency Leave

  • The employee is under medical investigation, supervision, or treatment for a designated infectious disease.
  • The employee is in isolation, quarantine, including self-isolation, based on information or directions from 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 not to work due to a concern that a designated infectious disease could be spread in the workplace.
  • The employee needs to provide care to a person for a reason related to a designated infectious disease such as a school or daycare closure.
  • The employee is prevented from returning to Ontario because of travel restrictions.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  • The employee needs to provide care or assistance to an individual impacted by a designated infectious disease.

An employee will be able to take this new job-protected leave to provide care or assistance to the following impacted individuals:

  • The employee’s spouse.
  • A parent, step-parent or foster parent of the employee of the employee’s spouse.
  • A child, step-child or foster child of the employee or the employee’s spouse.
  • A child under legal guardianship of the employee or the employee’s spouse.
  • A sibling or step-sibling of the employee.
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
  • A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
  • A son-in-law or daughter-in-law of the employee or the employee’s spouse.
  • An uncle or aunt of the employee or the employee’s spouse.
  • A nephew or niece of the employee or the employee’s spouse.
  • The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
  • A person who considers the employee to be like a family member.
  • Any individual that the government later identifies through regulation.

The legislation expressly states that employers are prohibited from requesting, and employees are not required to provide, a doctor’s note or medical certificate to take this unpaid, job-protected leave. However, employers may require employees to provide other evidence that is “reasonable in the circumstances, at a time that is reasonable in the circumstances”. “Reasonable” in this case would refer to requests such as a note from an employee’s daycare provider advising of a closure or evidence that an airline has cancelled an employee’s flight.

As noted in our earlier blog post, these new amendments are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario and is expected to remain in place until the government advises otherwise.