The Ontario government has extended the COVID-19 infectious disease emergency leave to January 2, 2021. The regulation, originally scheduled to end on September 4, 2020, offers employers and employees temporary relief measures during the pandemic under the Employment Standards Act, 2000 (the “Act”).

The extension will continue to help Ontario employers who are not yet able to return employees to regular work as a result of the pandemic. It is meant to protect employers from the costs of termination and severance obligations and give businesses more time to reopen and get back to full operations before returning employees to work. According to the Act, temporary layoffs normally may not exceed 13 weeks in any 20-week period or 35 weeks in any 52-consecutive week period. After this, the layoff becomes a termination and the employer must provide the employee with the appropriate entitlements. The extension of the emergency infection leave enables employers to extend a layoff beyond these maximums without triggering termination payments.

While this means employees may find themselves laid off for much longer than usual, it also has the benefit of preserving their position throughout a lengthy shutdown or work reduction.

“The cost of termination and severance pay can make it impossible for a business to survive and reopen,” says Monte McNaughton, Minister of Labour, Training and Skills Development, in a news release. “That’s why we acted to make sure businesses survive and workers have jobs to come back to.”

Employees who work at fully reopened businesses will continue to have job protection through the emergency leave if they must stay home to isolate, quarantine or take care of a loved one because of COVID-19. This includes parents who decide not to send their children back to school because of concerns about the virus.

Governmental Guidance

According to the government’s website, from March 1, 2020 to January 2, 2021 the following applies:

• a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 is deemed to be on a job-protected infectious disease emergency leave,
• a non-unionized employee is not considered to be laid off if their employer temporarily reduces or eliminates their hours of work or wages for reasons related to COVID-19, and
• a non-unionized employee is not considered to be constructively dismissed under the ESA if their employer temporarily reduces or eliminates their hours of work or wages for reasons related to COVID-19.

Then, beginning on January 3, 2021:

• employees will no longer be deemed to be on infectious disease emergency leave. 
• the ESA’s regular rules around constructive dismissal resume. This means a significant reduction or elimination of an employee’s hours of work or wages may constitute a constructive dismissal, even if it was done for reasons related to COVID-19).
• the ESA’s regular rules around temporary layoff resume. For practical purposes, an employee’s temporary layoff clock re-sets on January 3, 2021.

Employees’ Entitlements

Employees who take infectious disease emergency leave generally have the same rights as those who take pregnancy or parental leave. Employers cannot threaten, fire or penalize employees who take such a leave and there is no specified limit to how many days an employee can be on infectious disease emergency leave.

There is no specified limit as to how many days an employee can be on infectious disease emergency leave. Employees are entitled to be away from work on this emergency leave for as long as the event that triggered the leave lasts but after that, their normal obligations to be at work resume.

If the employee is the party to trigger the leave, they may be required to provide evidence that they are eligible, but employers cannot require an employee to provide a certificate from a doctor or nurse as evidence.

COVID-19 is currently the only disease for which the infectious disease emergency leave can be taken. The entitlements to leave are retroactive to January 25, 2020, and have no end date.

Reasons and Rights

There are many reasons for employees to take infectious disease emergency leave. A partial list includes those under individual medical investigation, supervision or treatment, or those who are providing care or support to designated individuals, including a spouse, parent, child, brother, sister or grandparent. Also included are employees who are directly affected by travel restrictions related to COVID-19 and cannot be reasonably expected to travel back to Ontario.

The Employment Standards Act contains several types of leave, including sick leave, family responsibility leave, family medical leave and bereavement leave. Employees may be entitled to more than one leave for the same event since the purpose, length and eligibility criteria of each leave is different.

Employees must generally advise their employer that they will take an infectious disease emergency leave before they start the leave, either in writing or verbally. If they can’t provide advance notice, the employee must inform the employer as soon as possible after the leave begins.

The government’s COVID-19 infectious disease emergency leave support guidelines are designed to provide support to both employees and employers. For more details on how this applies to individual cases, see the O. Reg. 228/20: Infectious Disease Emergency Leave under Employment Standards Act, 2000. S.O. 2000, c. 41.

For guidance on this issue and all employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.