Image: Benson Kua / CC BY-SA
On March 16, 2020, we posted a blog about six employment law-related points employers should keep in mind during the coronavirus pandemic. We also said that new legislation may be brought in during this crisis. Here is an update.
Yesterday, on March 19, 2020, the government passed Bill 186. This Bill amends the Employment Standards Act, 2000, and addresses leaves of absence in cases of declared emergencies (which Premier Ford triggered this week), and infectious disease emergencies (such as the COVID-19 pandemic, where the conditions set out below are met).
With respect to infectious disease emergencies, the bill allows an employee to take a leave of absence without pay if the employee is not able to perform the duties of their position in certain circumstances, including when the employee is:
- Under medical investigation related to a designated infectious disease
- Under supervision or treatment related to a designated infectious disease
- Under quarantine, isolation, or control measure (including self-isolation) where the quarantine, isolation or control measure meet certain criteria in the legislation and relate to a designated infectious disease
- Under a direction given by the employer in response to concerns of the employer that the employee may expose others in the workplace to a designated infectious disease (essentially, a mandatory unpaid leave of absence)
- Providing care or support to an individual, as defined in the legislation, and where such care and support is related to a designated infectious disease, including school or daycare closures
- Affected by travel restrictions related to a designated infectious disease
With respect to leaves of absence in cases of declared emergencies, the employer may require the employee to provide evidence “reasonable in the circumstances”, and at a time that is reasonable in the circumstances, to show that the employee is entitled to the leave. The same applies to leaves of absence in cases of infectious disease emergencies; however, the employer is not allowed to ask an employee to provide a certificate from a qualified health practitioner as evidence in cases of infectious disease emergencies.
The employee is entitled to take the leave of absence to the end of the declared emergency or the designated infectious disease. How this impacts employers can differ. There is not a “one size fits all” time frame.
In the end, lay–offs/terminations/changes to benefits are not allowed during leaves of absence that are protected under the Employment Standards Act, 2000. Bill 186 is retroactive to January 25, 2020 (meaning, it imposes job protection retroactive to January 25, 2020). However, the format of asking employees to stay at home is still the same: if they are not being paid by the employer or if they are getting paid less, there is an interruption in their earnings that triggers the obligation to provide a Record of Employment for lack for work.
Pursuant to Bill 186, the Lieutenant Governor has the ability to make various regulations, including regulations relating to the designation of an infectious disease, and extending the duration of leaves of absence.
Employers should continue to monitor any future legislative changes.
Mana Khami is a partner at Harrison Pensa and one of the company’s most active community contributors. Mana provides practical advice and careful guidance to individuals, corporations and municipalities on a wide range of legal topics. Connect with Mana on LinkedIn.