On March 19, 2020, in response to the effects of the ongoing global COVID-19 pandemic on Ontario workers, the Ontario Legislature held an emergency session to introduce and pass Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020.

The Bill amends the Employment Standards Act, 2000 to provide for a new unpaid, job-protected emergency leave to any employee who is not performing the duties of his or her position due to:

• The employee being under medical investigation, supervision or treatment related to a designated infectious disease;
• The employee acting in accordance with a relevant order under the Health Protection and Promotion Act related to a designated infectious disease;
• The employee being in quarantine isolation or subject to a control measure (which can include self-isolation) implemented as a result of information or direction related to a designated infectious disease which has been issued to the public by a public health official, a qualified health practitioner, Telehealth Ontario, the provincial or federal governments, or a municipal council or board of health;
• The employee being directed by their employer not to work due to a concern that the employee may expose other individuals in the workplace to a designated infectious disease;
• The employee providing care or support to any one of a defined group of individuals related to a designated infectious disease which “concerns” that individual (including school and daycare closures); or
• The employee being directly affected by travel restrictions related to the designated infectious disease and who cannot reasonably return to Ontario.

The new job-protected infectious disease emergency leave is in addition to the entitlement to emergency leave for declared emergencies that was already available under the ESA.  Declared emergency leave continues to apply to any employee who is not performing the duties of his or her position because an emergency has been declared under section 7.0.1 of the Emergency Management and Civil Protection Act, and at least one of the following applies:

1. An order applies to that employee made under the Emergency Management and Civil Protection Act;
2. An order applies to that employee made under the Health Protection and Promotion Act;
3. That employee is needed to provide care or assistance to any one of a defined group of individuals; or
4. For any other prescribed reason.

Length of Leave: Infectious disease emergency leave may last for as long as the employee is not performing their position for any one of the mandated reasons related to the designated infectious disease.

Medical Certificates: A medical certificate is not required to justify an entitlement to infectious disease emergency leave, but employers may request other evidence reasonable in the circumstances at a time that is reasonable in the circumstances to support their entitlement to leave.

Defined Group of “Individuals”: Under the amendments, the leave provisions apply to an employee providing care, support or assistance to the employee’s:

• Spouse;
• Parent of the employee or employee’s spouse;
• Child of the employee or employee’s spouse;
• Sibling of the employee or employee’s spouse;
• Grandparent or grandchild of the employee or employee’s spouse;
• Son or daughter-in-law of the employee or employee’s spouse;
• Nephew or niece of the employee or employee’s spouse;
• Spouse of the employee’s grandchild, uncle, aunt, nephew or niece;
• Any person who considers the employee “to be like a family member”, provided any prescribed conditions are met; and
• Any other prescribed individual.

The legislation came into force effective March 19, 2020, imposing job protection retroactive to January 25, 2020.

We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.