By way of Bill 186, Ontario amended the Employment Standards Act, 2000 (ESA), effective March 19, 2020, to establish new rules for emergency leaves of absence. The amendments create a job-protected leave for employees impacted by the COVID-19 pandemic currently disrupting workplaces across the province. While Bill 186 was passed to address COVID-19-related concerns, this new regime could be extended to any other infectious disease prescribed by regulation to the ESA.
Who is covered under the job-protected leave for infectious disease emergencies?
An Ontario-regulated employee will qualify for an infectious disease emergency leave under the reforms introduced by Bill 186 if the employee:
- is under medical investigation, supervision or treatment related to COVID-19;
- is acting in accordance with an order under the Health Protection and Promotion Act relating to COVID-19;
- is in quarantine or isolation or is subject to a control measure (which may include self-isolation) and the quarantine, isolation or control measure was implemented as a result of information or directions related to COVID-19 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;
- is under a direction given by the employer in response to a concern that the employee may expose other individuals in the workplace to COVID-19;
- is providing care or support to a designated individual (for example, a spouse, parent, child, grandparent, sibling or dependent relative) because of a matter related to COVID-19 that concerns the individual, including school or day care closures; or
- is directly affected by travel restrictions relating to COVID-19 and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
Individuals who qualify under one or more of these criteria are entitled to an emergency sick leave due to COVID-19, retroactive to January 25, 2020.
Is an employee on emergency sick leave required to be paid?
No. An emergency sick leave is an unpaid leave of absence under the ESA.
What evidence is required for an employee to qualify for COVID-19- related leave?
An employer may require that an employee present evidence that is “reasonable in the circumstances” demonstrating the employee’s entitlement to the emergency sick leave. While the ESA does not specify what evidence may be requested, it is clear that employers are not permitted to request a medical note (a “certificate from a qualified health practitioner”).
Note that employers may choose whether or not to request evidence; it is not a requirement imposed by the ESA.
What is the duration of the job-protected leave for infectious disease emergencies?
A leave of absence for infectious disease emergencies such as the COVID-19 pandemic may continue for as long as the employee is not performing his or her job duties due to any of the reasons listed, but only so long as the infectious disease remains a “designated disease” under the Infectious Disease Emergency Leave Regulation (Ontario Regulation 66/20).
Does this job-protected leave cover all Ontario-regulated employees?
While almost all provincially regulated workers in Ontario are covered by the ESA (there are limited exceptions), regulations to the ESA may exempt or prohibit certain classes of employees from taking emergency sick leave. As of March 27, 2020, no such regulations have been enacted.
Benefit plan implications for emergency sick leaves
There are two important requirements under the ESA to keep in mind relating to benefit entitlements under a prescribed leave of absence under Part XIV of the ESA (which now includes emergency sick leaves related to COVID-19):
- The ESA requires that employees on a prescribed leave of absence continue to participate in each type of benefit plan during the leave of absence, unless the employee elects in writing not to do so. The term “benefit plan” is defined broadly in the ESA and would include pension plans, life insurance plans, accidental death plans, extended health plans and dental plans.
- Employers are also obligated to continue their contributions under benefit plans during the prescribed leave, unless the employee does not intend to pay required contributions to the plan (if any) and has notified the employer in writing.
These statutory requirements raise a number of important issues for employers to consider in respect of emergency sick leaves:
- What are the implications of an emergency sick leave and other anticipated workplace changes (e.g., layoffs or a reduction to the number of hours worked by employees) under the terms of their benefit plans?
- Are any benefit plan amendments necessary or desirable to better accommodate this new type of statutory leave of absence?
- When and how should they deal with communications relating to the benefit-related implications of COVID-19 in relation to leaves of absence? An emergency sick leave related to COVID-19 may not be foreseeable and there may be challenges associated with communicating with an employee on any such leave of absence. As the ESA does not require that the emergency sick leave be paid, employees may wish to exercise their statutory rights to cease required employee contributions (to the extent there are any) during the leave period, although it is important that they understand the implications associated with doing so.
A proactive approach can help employers navigate these matters should they arise.
We encourage you to reach out to a member of Osler’s Pension and Benefits Department if you have any questions concerning how this change will impact your organization and the administration and operation of your pension or other benefit programs. For other employment law enquiries about COVID-19 and related legislative changes, contact Osler’s Labour and Employment Department or see Osler’s COVID-19 response page.
