New Kind of Coronavirus Work Leave in Ontario
In response to the coronavirus pandemic, on March 16, 2020, the Ontario government proposed that employees with coronavirus illness, symptoms or quarantine can take a new kind of indefinite leave called “Infectious Disease Emergency Leave” under a new law called the “Employment Standards Amendment Act (Infectious Disease Emergencies), 2020″. This leave would replace “Sick Leave” for workers affected by COVID-19 coronavirus. This is a welcome change, as “sick leave” only provided for 3 days of unpaid leave.
On March 19, the Employment Standards Amendment Act (Infectious Disease Emergencies) came into effect. As a result of the new law coming into effect, employees with coronavirus illness, symptoms or quarantine may take as many job-protected Infectious Disease Emergency Leave days as they require.
To be clear, with these proposed changes, an employee cannot be terminated for taking a long leave due to coronavirus illness, symptoms or quarantine. If an employee is terminated for taking this leave related to coronavirus illness, symptoms or quarantine, they can be reinstated.
Infectious Disease Emergency Leave: Summary
Infectious Disease Emergency Leave provides for a new unpaid, job-protected emergency leave to employees home sick from work, 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 for as long as required. There is no maximum “leave” days.
How does Infectious Disease Emergency Leave work?
Infectious Disease Emergency Leave provides job protection for employees unable to work for the following reasons:
- The employee is under medical investigation, supervision or treatment for COVID-19; or
- The employee is acting in accordance with an order under the Health Protection and Promotion Act; or
- The employee is in isolation or quarantine in accordance with public health information or direction; or
- The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace; or
- The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure; or
- The employee is prevented from returning to Ontario because of travel restrictions.
In addition, an employee can take Infectious Disease Emergency Leave to care for applicable loved ones even if they themselves are not sick. An employee can take Infectious Disease Emergency Leave to care for the following individuals:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee or the employee’s spouse.
- A child, step-child or foster child of the employee or the employee’s spouse.
- A child who is under legal guardianship of the employee or the employee’s spouse.
- A brother, step-brother, sister or step-sister 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, provided the prescribed conditions, if any, are met.
- Any individual prescribed as a family member for the purposes of this section.
Can an employer force an employee to go on Leave?
An employer can do anything necessary to maintain a healthy and safe workplace. An employer can force home an employee if it chooses without pay or without pay. However, under this new Leave, employees sent home must be reinstated when there is no more concern that COVID-19 could be spread in the workplace.
Nevertheless, an employer may still be liable for common law constructive dismissal where it forces an employee home without pay.
Perhaps however there is faint argument to be made in that:
- Employers are permitted to direct employees home if they have a genuine concern they may expose other individuals in the workplace to COVID-19.
- As per the newly enacted Infection Disease Emergency Leave law, an employer must protect the job of affected employees sent home because of a genuine concern they may expose other individuals in the workplace to COVID-19 .
- Employers may still be liable for constructive dismissal by directing employees home without pay who may expose other individuals in the workplace to COVID-19.
- However, a claim for constructive dismissal is made, perhaps, weaker by this new Leave if employers follow it properly. A constructive dismissal is less likely when there is a temporary forced leave of absence, particularly where it is of a finite duration to protect other workers, and there is a guarantee of eventual re-employment.
This is not legal advice, and this theory has not been tested. Do not rely on it. It is just a novel and hypothetical argument an employer could consider advancing if it was faced with a constructive dismissal in the present circumstances.
Even still, if an employer recalls an employee forced on this unpaid Infectious Disease Emergency Leave who claimed or was going to claim constructive dismissal, then, even if she is successful, she may only be entitled to damages for the 14-60 or so days she was forced on leave, not the entire reasonable notice period like someone who is terminated without cause. Once an employer recalls an employee, her damages are “mitigated”. See Bevilacqua v Gracious Living Corporation, 2016 ONSC 4127 (CanLII) at paragraph 27.
Update, June 2, 2020: In a surprise regulation issued on May 29, 2020, retroactive to March 1, 2020 and until Ontario’s emergency order is no longer in place, all covid related temporary lay-offs will be deemed an infectious disease emergency leave. Call us for more on this issue.
Update May 30, 2020: The Ontario government’s May 29, 2020 regulation under the Infectious Disease Emergency Leave provision in the Employment Standards Act says a temporary reduction or temporary elimination of an employee’s hours or wages for COVID-19 reasons are not considered a constructive dismissal per the Employment Standards Act. However, as Professor Doorey of Osgoode Hall pointed out very quickly after the regulation was posted, this regulation would likely not apply to “common law” constructive dismissal. In addition, Andrew Monkhouse, the founder of my firm, Monkhouse Law, has the same opinion in that this new regulation does not bar common law constructive dismissal. Hence, employees deemed to have taken this Infectious Disease Emergency Leave cannot make a constructive dismissal complaint to the Ministry of Labour, but they still, likely, could claim common law constructive dismissal through the courts. None of this information has been tested, all we have now are just theories. Call us for more info on this regulation.
Who does Infectious Disease Emergency Leave Apply to?
Most employees and employers in Ontario are covered by the provisions in this new legislation, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers.
However, this legislation does not apply to people in sectors that fall under federal jurisdiction, including employees working for banks, airports, inter-provincial and international rail, and federal crown corporations. Nevertheless, we expect the federal government to enact legislation that mirrors Ontario’s Infectious Disease Emergency Leave very quickly.
How Long is Infectious Disease Emergency Leave?
Employees can take an Infectious Disease Emergency Leave for as long as they require so long as they are still affected by:
- medical investigation, supervision or treatment for COVID-19; or
- an order under the Health Protection and Promotion Act; or
- isolation or quarantine in accordance with public health information or direction; or
- an employer direction the employee not to work due to a concern that COVID-19 could be spread in the workplace; or
- a need to provide care to a person for a reason related to COVID-19 such as a school or day-care closure; or
- not being able to return to Ontario because of travel restrictions.
Furthermore, the Infectious Disease Emergency Leave may last until the end of the declared emergency or until COVID-19 is no longer designated as an infectious disease under the Infectious Disease Emergency Leave regulations.
Is Infectious Disease Emergency Leave Paid?
No, employers do not need to pay employees on Infectious Disease Emergency Leave. Like Sick Leave, Infectious Disease Emergency Leave is unpaid.
Employers should encourage employees taking this unpaid Declared Emergency Leave to use paid vacation days first. Vacation pay is worth 100% of the normal salary, but EI is only worth 55%.
March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here.
Can an Employee be Fired for Taking Infectious Disease Emergency Leave?
Like all the Leaves in Employment Standards Act, an employee cannot be terminated for taking a long Infectious Disease Emergency Leave due to coronavirus illness, symptoms or quarantine so long as the above-noted individual requirements for the leave are still met. If an employee is terminated for taking this Infectious Disease Emergency Leave in accordance with the requirements of the law, they can be reinstated.
Doctors Notes and Infectious Disease Emergency Leave
Under the new Infection Disease Emergency Leave law, an employee will not be required to provide a medical note if they need to take the leave. However, the employer may require the employee to provide other evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances (i.e. well down the road). This could include such requests as a note from the daycare or for evidence that the airline cancelled a flight, but not a medical note.
Information on this website is for information purposes only. It is not legal advice. You should not rely on, or take or fail to take any action based upon information on this website. Speak with an employment lawyer at Dutton Employment Law before relying on this website.
Dutton Employment Law advises employees and employers on employment law in Ontario. Call for a free consultation.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.