On March 19, 2020, the Government of Ontario passed Bill 186, titled the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, S.O. 2020, c. 3, (the “Amendment”) an amendment to the Employment Standards Act, 2000 (the “ESA”). The Amendment amends the ESA to address when emergency leave is available to employees in case of infectious disease emergencies, such as the COVID-19 outbreak.
Leave of Absence Provisions
The Amendment entitles provincially regulated employees to take a leave of absence without pay, where the employee will not be performing their duties because of reasons related to a designated infectious disease, including:
Restrictions and Evidence of Entitlement
Under the Amendment, the Government can create exemptions for certain classes of employees. Employees of federally regulated employers, including banks, airports and airlines, or radio and television, are not covered by the Amendment.
Restrictions on the entitlement are specified, and related amendments are made addressing the evidence of entitlement required, when the entitlement ends and the regulation-making powers.
Employees may be required by employers to provide evidence “reasonable in the circumstances, at a time that is reasonable in the circumstances,” that the employee is entitled to the leave of absence. Employers are not permitted to require employees to provide a certificate from a qualified health practitioner (i.e. a doctor’s note) as evidence.
Rights and Benefits during Leave
According to Part XIV of the ESA, employees on an unpaid leave of absence due to emergencies, including infectious disease emergencies, retain certain benefits.
Following the emergency leave, employees must be paid no less than they earned before taking the leave.