Recent changes to the Employment Standards Act due to COVID-19

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:

• the employee is under medical investigation, supervision or treatment;
• the employee is in quarantine or isolation;
• the employee is providing care or support to another individual; or
• the employee is affected by travel restrictions.

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.

• Employees retain the right to participate in pension plans, life insurance plans, accidental death plans, extended health plans, dental plans and any prescribed type of benefit plan, unless they inform the employer in writing that they do not wish to do so.

• Employers are required to continue to make employers’ contributions for the benefit plans listed above, unless the employee gives the employer written notice that the employee does not intend to pay the employee’s contributions, if applicable.

• Employees may defer taking vacation until the leave of absence expires, or at a later date if the employee and employer agree, subject to certain conditions.

• Employees continue to accumulate seniority while on leave, and employers must include the leave of absence in calculations of length of employment and employee service. However, the leave period does not apply to the completion of a probationary period.

• Employees must be reinstated to their former positions following the leave, if the position still exists, or to comparable positions.

Following the emergency leave, employees must be paid no less than they earned before taking the leave.