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With the growing concerns of Covid-19 and its impact on the work place, there have been certain emergency legislation passed to protect employees during this unprecedented time. Both the Federal and Ontario governments have passed legislation providing employees affected by Covid-19 protected unpaid leave.  Federally regulated businesses will rely on The Canada Labour Code.  Businesses in Ontario that are not federally regulated will rely on the Employment Standards Act. 

Amendments to the Canada Labour Code

A new Bill known as Bill C-13, COVID-19 Emergency Response Act, was passed on March 25, 2020. This Bill sets out the amendments that have been made while the  public deals with the impact of COVID-19. This Bill sets out that employees who are unable or unavailable to work for reasons related to COVID-19 may take unpaid leave of up to 16 weeks. To take this leave, the employee does not have to provide a certificate or medical note issued by a healthcare provider, but the employee must provide the employer with written notice setting out the reasons for the leave and its length as soon as possible.

In the event an employee takes unpaid leave with respect to COVID-19, the employer is subject to the following:

1. Prohibitions: 

Employers cannot discipline, demote, lay-off, or dismiss an employee or threaten an employee with discipline, demotion, lay-off or dismissal because the employee is taking COVID-19 leave.

2. Benefits: 

While the Employee is on unpaid leave, the Employers must still continue to provide pension, health, and disability benefits, and seniority or service accumulation for the duration of the leave. The Employees are responsible for benefit contributions during the leave (if this was a part of their benefits package), unless they declare they wish to discontinue their benefits during the leave. Just like most other protected leaves, the Employers must continue to pay their proportionate contributions during the leave, if any.

3. Opportunities: 

Just because the Employee is on unpaid leave, the Employer cannot deprive the Employee of employment, promotional or training opportunities relating to the individual employee’s qualifications. 

4. Vacation: 

Vacations may be interrupted to take COVID-19 related leave, if the employee so chooses.

The amendments can be found at https://laws-lois.justice.gc.ca/eng/AnnualStatutes/2020_5/page-6.html#docCont

Amendments to the Employment Standards Act

The Ontario government passed the Employment Standards Amendment Act (Infectious Disease Emergencies), on March 19, 2020. This legislation provides the employees with the right to take unpaid, job-protected leave during this declared emergency with respect to  COVID-19.  This legislation sets out that this protected leave is retroactive to January 25, 2020, and shall remain in effect until the COVID-19 emergency is declared lifted. 

1. Who is protected:

All full-time workers, part-time workers, students, temporary help agency assignment employees, and casual workers are employees that are protected under the leave.

2. Documentation not required:

Employees are not required to provide a medical certificate or note in order to take this new protected leave.  If the employer so chooses the employer may ask the employee to provide reasonable evidence to show that leave is required.  This can include evidence that an airline cancelled their flight or that a daycare is closed.

The amendments to the ESA provide job protection for employees unable to work for the following COVID-19 related reasons:

• Because of a declared emergency under section 7.0.1 of the Emergency Management and Civil Protection Act AND an order applies to him or her under section 7.0.2 of the Emergency Management and Civil Protection Act,
  • orders include things like prohibiting travel or movement, closing public and private spaces
  • because he or she is needed to provide care or assistance to any of the following individuals:
    •  The employee’s spouse.
    •  A parent, step-parent or foster parent of the employee or the employee’s spouse.
    •  A child, step-child or foster child of the employee or the employee’s spouse.
    •  A child who is under legal guardianship of the employee or the employee’s spouse.
    •  A brother, step-brother, sister or step-sister of the employee.
    •  A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
    •  A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
    •  A son-in-law or daughter-in-law of the employee or the employee’s spouse.
    •  An uncle or aunt of the employee or the employee’s spouse.
    • A nephew or niece of the employee or the employee’s spouse.
    • The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
    • A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
    • Any individual prescribed as a family member for the purposes of this section.

• because of such other reasons as may be prescribed; or

• because of one or more of the following reasons related to a designated infectious disease:
  • The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
  • The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
  • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
  • The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
  • The employee is providing care or support to an individual (as listed above) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or daycare closures.
  • The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.

The amendments can be found at https://www.ontario.ca/laws/statute/S20003We at Lockyer + Hein LLP know these are concerning and unprecedented times. If you have any questions or other employment related legal issues, please contact Harjyot Dhaliwal at hdhaliwal@lhlaw.ca. We are here to help.