Employment Standards Act Adapting to COVID-19

Topic: Employment and Labour Law March 24, 2020 by Chris Rutherford & Josef Gallant

Over the past couple of weeks, the COVID-19 pandemic has led governments to take unprecedented measures in an effort to contain the further spread of the virus.

This has led to rapid changes to important legislation as governments scramble to accommodate the needs of thousands of employees who may be unable to continue working as a consequence of emergency measures.

A recent example of this is Bill 186 – An Act to amend the Employment Standards Act, 2000 (“ESA”). Bill 186 came into force after receiving its first, second and third reading, as well as Royal Assent, last Friday on March 19, 2020. The Bill addresses when emergency leave is available to employees in the case of infectious disease emergencies under section 50.1 of the ESA.

Under the previous version of the ESA, there were no provisions specifically dealing with an infectious disease emergency. Under subsection 141 (2.1) of the ESA, the Government of Ontario can now designate infectious diseases for the purposes of employment leave and associated regulations. What follows in this post is a brief rundown of the changes brought by Bill 186.

First and foremost, section 50.1 has been amended to specifically identify infectious diseases as a form of emergency to which “emergency leave” applies. Subsection 50.1(1.1)(b) entitles employees to leave without pay for the following reasons related to an 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 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) [Care, assistance, support for certain specified individuals] because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures. [the list under subsection (8) has been amended to include a broader range of family members, including a person who considers the employee as a family member]

(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.

Additional amendments include regulating the degree of evidence employers are permitted to require from employees seeking leave because of an infectious disease. Under subsection 50.1(4.1), employers may require reasonable evidence within a reasonable time frame, however it is forbidden to require employees seeking leave because of an infectious disease to provide certificates from qualified health practitioners.

Under subsection 50.1(5.1), the duration of the leave can run from the beginning of the prescribed leave and remains in effect as long as the employee is still subject to one of the reasons under 50.1(b), listed above. Given the broad scope of reasons, and the extent of the pandemic facing Ontarians and the rest of Canada, the leave could last for considerable periods of time.

Clearly, Bill 186 and the corresponding amendments to the ESA are illustrative of the Government of Ontario’s concerns over the unprecedented impacts that COVID-19 is having on society. The amendments offer some reprieve to employees who may be unable to fulfill their employment obligations because of either being subject to an order relating to an infectious disease, or because of a family member who is subject to an infectious disease order requiring their assistance.

There will be further changes to legislation as governments across Canada attempt to contain the COVID-19 pandemic. Follow up with LMR for information that effects your legal rights as reactions to COVID-19 continue to evolve. In the meantime, please remember to wash your hands, practice social distancing, and stay safe.