As governments around the world continue to take steps to address the global COVID-19 pandemic, significant changes to daily life follow in tow. While “social distancing” has become the phrase de jour, the impact of limiting gatherings to groups of five people or fewer has had a marked impact on both businesses and employees whose ability to work and to continue to provide services have been directly affected.
Over the past few weeks, the Ontario government has declared a state of emergency under the Emergency Management and Civil Protection Act, has shut down all non-essential services and workplaces, and has introduced Bill 186 to create a new type of emergency leave for employees under the Employment Standards Act.
As organizations and employees react to these changes and the interruption of their regular workflow, it is important to assess how these changes affect their business, and how best to proceed in the current environment. This article will explore the legislative response by both Federal and Provincial governments, and address how those responses impact businesses and employees.
The overriding goal of the recent amendments and directions are to slow the spread of the virus and to protect the health and safety of individuals at all levels of an organization. To that end, recent travellers and anyone who may have been exposed to the virus is being told to self-isolate for a period of up to two weeks. As a result, many workplaces could be dealing with increased numbers of absences as employees at all levels may be required to follow the distancing protocol.
Managing Emergency Absences – Who is entitled to a leave of absence?
When an emergency is declared under the Emergency Management and Civil Protection Act, employees are entitled to an unpaid leave of absence if they are prevented from working because of any of the following reasons:
- They are subject to an order under either the Emergency Management and Civil Protection Act or the Health Protection and Promotion Act which prevents them from coming to work;
- They are needed to provide care or assistance to a specified individual, which list of individuals may include: a spouse, parent, child, sibling, grandparent, dependent, or other extended family members who may require care;
- Any other reason prescribed at the time of the emergency.
The recent changes to the Employment Standards Act also introduced a new type of Infectious Disease Emergency Leave, which grants unpaid leave to employees who are:
- Under medical investigation;
- The subject of an order under the Health Protection and Promotion Act;
- In quarantine, or who are self-isolating as a result of an order or directions issued from a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health;
- Directed to stay at home by the employer over fears of transmitting the disease;
- Required to provide care to a specified individual or dependent;
- Prevented from returning to Ontario because of travel restrictions put in place because of the disease; and
- Prevented from working for any prescribed reason.
Note that these changes to the Employment Standards Act apply only to provincially regulated employees.
The above list of conditions that give rise to an entitlement to unpaid leave are broad and are designed to protect the jobs of workers who are prevented from working because of factors related to the disease. Entitlement to the leave is designed to continue as long as the circumstances described above persist, and for as long as the emergency is in effect. Both employers and employees should also be aware that there is no requirement that an employee provides a “doctor’s note” or any certificate from a healthcare professional in order to qualify for the leave. Employers are, however, entitled to ask for evidence supporting the need for a leave which is reasonable in the circumstances.
Employee Entitlements while on COVID-19 Leave
Leave granted for absences caused by COVID-19 works in much the same way other types of leave under the Employment Standards Act. Upon returning from leave, employees have the right to be reinstated, the right to be free from penalty or reprisal for having taken leave, the right to continue to participate in any benefits plan, and the right to earn credit for length of service/seniority.
Government Reactions and Changes to Support Programs
The federal government has made a number of changes to employment insurance coverage that is designed to assist employees who are impacted by the downturn of available work amid the pandemic. This has taken the form of waiving the waiting period for those claiming the Employment Insurance sickness benefit, as well as introducing an Emergency Care benefit available to employees who are away from work because they are quarantined, are taking care of a family member, or who are forced to stay home because of childcare requirements.
The federal government has also implemented special changes to the work-sharing program, wherein employees can receive a subsidy for agreeing to reduce their normal working hours. The program is being extended to allow for workshare agreements to be in place for up to 76 weeks, and the waiting period between agreements is being waived.
As we continue to combat the spread of COVID-19, the need for social distancing has been made quite clear. As this will inevitably cause disruption in working arrangements for employers and employees, it is crucial that all parties be informed of their rights and of the special measures that have been put in place to allow for the required distancing to take place, while also protecting jobs, and subsidizing lost wages. The above article has been prepared for informational purposes only and is not designed to be legal advice. If you are an employer or an employee and have questions about how your job or your workplace is affected by the recent changes, or about what steps you can take to protect yourself, then please reach out to one of our experienced employment lawyers who can give you advice tailored to your specific situation.