After almost six months of school closures across Ontario due to the COVID-19 pandemic, school is now back in session for most students. The provincial government’s education model includes a voluntary back-to-school regime that provides parents and students with the option to engage in online learning from home or to have children physically attend at school. With recent cases of COVID-19 on the rise this fall, outlined below is a summary of what employers should be aware of regarding their obligations to accommodate employees with children that are not attending in-person school or childcare.[1]

Grounds for Taking the Infectious Disease Emergency Leave

The Government of Ontario confirmed at the start of September that despite several businesses being fully reopened and operating through an in-person model, employees are still eligible for leave protection under the Infectious Disease Emergency Leave (“IDEL”) regulation. This unpaid leave allows employees to care for their children in the event of a school or daycare closure, if the school protocol mandates the child’s absence, or if the child is sick and must stay home as a precautionary measure. However, the Government has gone one step further and stated that this leave is also available to parents who choose not to send their children back to school out of fear of contracting the virus.[2] This announcement clarified that fear alone is sufficient to keep an employee’s children home from school and be eligible for IDEL.

Permitting Variations of the Leave

Employers should note that flexibility is required when employees are taking this leave. An employee is permitted to take leave in consecutive days or spread across sporadic days. Additionally, an employee may use this leave for portions of the day to accommodate hybrid in-person and at home schooling models. In this case, an employer must allow an employee to return to work after a partial day’s leave and pay the employee for the portion of the day they worked.

Is an employer permitted to ask for proof to substantiate an employee’s leave?

Employers are permitted to request proof from an employee for this leave, but with restrictions. It is acceptable to request evidence from employees that are reasonable in the circumstances. An employer is prohibited from requiring any medical evidence, such as a physician’s note, to substantiate taking the leave. However, it would likely be acceptable to request reasonable evidence, such as proof of recent travel or a note from their child’s school or daycare mandating the leave. What is considered reasonable will differ in each case and should be considered on a continuous basis.

How long will employers be required to accommodate leaves under IDEL?

This leave will be available to individuals until at least January 3, 2021. Employees are free to take this unpaid leave for an unlimited amount of days, so long as the triggering event requiring the leave is still occurring, and COVID-19 is still considered an infectious disease. Until this time, employers are cautioned to maintain meaningful communications with their employees, request reasonable documentation, consider its human rights legislation obligations including the duty to accommodate, and stay informed with updated government policies.

 

Many thanks to Alissa Scarcello for her assistance in drafting this article.


[1] https://www.ontario.ca/document/your-guide-employment-standards-act-0/infectious-disease-emergency-leave#section-2. This entire blog is based on the information found in this government document.

[2] https://news.ontario.ca/en/release/58240/ontario-extends-support-for-employers-and-employees-impacted-by-covid-19.