The Ontario government passed, in an emergency session, Bill 186 Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 which amends the Employment Standards Act, 2000 to address when emergency leave is available to employees in case of infectious disease emergencies.  The amendments come into force on March 19, 2020 and is retroactive to January 25, 2020, the date the first presumptive COVID-19 case was confirmed in Ontario. 

The government has released a Backgrounder which provides:

The Ontario Legislature has passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives.

Here are some of the highlights in Bill 186.

Who is Eligible for the Leave

Section (1.1) of the Act provides that 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:

(a)  because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and,

(i)  because of an order that applies to him or her made under section 7.0.2 of the Emergency Management and Civil Protection Act,

(ii)  because of an order that applies to him or her made under the Health Protection and Promotion Act,

(iii) because he or she is needed to provide care or assistance to an individual referred to in subsection (8), or

(iv)  because of such other reasons as may be prescribed; or

(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 under section 22 or 35 of 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, 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.

(iv)  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.

(v) The employee is providing care or support to an individual referred to in subsection (8) 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.

(vii)  Such other reasons as may be prescribed.

In terms of section 1.1(b)(v), the amendments largely mirror other provisions in the ESA in defining the individuals as:

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 child who is under legal guardianship of the employee or the employee’s spouse.

5.  A brother, step-brother, sister or step-sister of the employee.

6.  A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.

7. A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.

8.  A son-in-law or daughter-in-law of the employee or the employee’s spouse.

9.  An uncle or aunt of the employee or the employee’s spouse.

10. A nephew or niece of the employee or the employee’s spouse.

11. The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.

12. A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.

Evidence that May be Requested

Where the employee takes a leave under clause (a) above, the employer may require an employee to provide evidence reasonable in the circumstances, at a time that is reasonable in the circumstances, that the employee is entitled to the leave. 

Where the employee takes a leave under clause (b) above, the employer may require an employee to provide evidence reasonable in the circumstances, at a time that is reasonable in the circumstances, that the employee is entitled to the leave.  However, importantly, the employer shall not require an employee to provide a certificate from a qualified health practitioner as evidence.

Duration of the Leave

The length of leave depends on whether it is being taken under section 1.1 (a) or (b). 

An employee is entitled to take a leave under clause (1.1)(a) for as long as he or she is not 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 and a reason referred to in subclauses (1.1)(a)(i) to (iv), but, subject to subsection (6), the entitlement ends on the day the emergency is terminated or disallowed.

An employee is entitled to take a leave under clause (1.1)(b) starting on the prescribed date and for as long as,

(a)  he or she is not performing the duties of his or her position because of a reason referred to in subclauses (1.1) (b) (i) to (vii); and

(b)  the infectious disease is designated by the regulations for the purposes of this section.

Job Protection

Bill 186 will certainly provide some relief in the form of job protection to many people who are already under considerable stress.  Section 53(1) of the ESA provides:

53(1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

However, section 53(1) does not apply “if the employment of the employee is ended solely for reasons unrelated to the leave.”  As noted by the Ministry of Labour, Policy and Interpretation Act:

The leave provisions are meant to ensure that an employee who goes on Part XIV leave is in the same position she or he would have been in if she or he had not gone on leave. The provisions are not meant to give a greater right to employees on leave. Where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a Part XIV leave, reinstatement will not be required. The employer has the onus of proving that the termination was totally unrelated to the fact that the employee took the leave. [Emphasis added] The leave cannot form any part of reason for termination.

According to the Ministry of Labour:

An employer cannot refuse to reinstate an employee where it was discovered during the leave that the employee was in fact dispensable, as it would be the occasion of the leave that gave rise to the reason for the termination (reasoning used in C.L.C. (Can Workers’ Union, Local 354) v American Can Canada Inc.). This situation is often encountered where the employer determines during an employee’s leave that the operation runs more smoothly without him or her or the temporary replacement performs more satisfactorily. A termination under these circumstances will be a violation, since the purpose of Part XIV of the Act is to ensure that the employee does not “lose out” in the workplace by reason of a Part XIV leave.

In the context of COVID-19 and the unsettled and shifting world in which we are currently navigating, one can imagine situations where an employee who takes a leave under the Act and the amendments may not have a job to come back to or may not return to the position the employee most recently held.  But those sorts of questions and issues will have to be dealt with on a case-by-case basis and, for the moment, Bill 186 is a welcome leave of absence in the context of this declared emergency.

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