By Sarah Rostom
COVID-19 might have thrown a wrench into your plans to return to work after your pregnancy or parental leave, even if those plans coincided with Ontario’s moving into Stage 2 of reopening.
The Ontario government announced that daycares would reopen in the province effective June 12, 2020. Despite this, your options for childcare may continue to be more limited than the announcement suggests.
Childcare centres are permitted to reopen on the condition that they follow strict public health measures. This includes limiting the number of children and staff to groups of 10 or fewer. The province has stated that it will prioritize essential workers, including those currently using emergency childcare centres, in allocating the limited spaces available. The province has also acknowledged that many centres will need more time to prepare and plan to reopen, meaning fewer childcare centres will open immediately.
With fewer spaces available and fewer centres open, many parents in Ontario will still be left with limited childcare options. This will pose a considerable challenge to an already overburdened and in-demand service. See also our post discussing whether you can stay off work even though daycares have reopened.
While it is not entirely clear, there is a good argument that parents and caregivers could still qualify for unpaid, job-protected leaves that have been created in Ontario and at the federal level to protect employees who cannot work for reasons related to COVID-19, even though daycares have opened.
Before you think about taking an unpaid leave
Before you decide whether you should take one of the unpaid leaves described below, you should consider two other options first:
- Explore whether you should request an accommodation from your employer on the basis of “family status,” which is a protected ground under the Ontario Human Rights Code. Depending on your circumstances, an accommodation on the basis of family status could include you working from home, possibly on a modified schedule. Learn more about family status accommodation in the context of COVID-19 here.
- Check with your employer or, if you belong to a union, your collective agreement, to see if you can take a paid leave. Your employer or collective agreement might offer paid leave through personal days, discretionary leave, or the use of sick credits.
If these options are not possible for you, or you require more time off than your paid leave entitlement provides, an unpaid job-protected leave may then be the best option.
What is Ontario’s unpaid job-protected leave?
On March 19, 2020, the Ontario government amended the Employment Standards Act to include an unpaid leave for people who cannot perform their employment duties for reasons relating to COVID-19. The leave is called the “Infectious Disease Emergency Leave.” It will be available to provincial employees for long as COVID-19 is listed as a “designated infectious disease”.
The Infectious Disease Emergency Leave is available to most workers who are unable to work because they need to provide care or support to an individual, including a child, because of COVID-19. This means that if you are unable to work because you have childcare responsibilities due to the lack of daycare availability, you may be eligible for this leave.
“Job protected” means you have the right to return to your job at the end of your leave. If your job no longer exists, your employer must find you a similar position. The only exception is if the employer shuts down its business while you are on leave. If this were to happen, the employer does not have to go back into business to create a job for you.
How do I apply for the Infectious Disease Emergency Leave?
You do not need to apply for this leave, or ask your employer for permission to take the leave. You must inform your employer that you intend to take this leave. You should do so in advance, if that is possible. You can inform the employer either orally or in writing. Generally, we think it is better to do so in writing, even if it is just in an email.
Can my employer ask me for proof that I require the leave?
Employees who take an Infectious Disease Emergency Leave can be asked by their employer for evidence that they are entitled to the leave. Such evidence must be “reasonable in the circumstances, at a time that is reasonable in the circumstances.”
Of course, if you are on pregnancy or parental leave, your employer will already know that you have a new child to look after. Your employer likely also knows that while daycares have reopened, there are fewer childcare centres and fewer spots available in the province. It is therefore possible that your employer will not ask you to provide evidence that you need the leave to care for your new child.
It is also worth noting that you are not required to prove that you will be the only person who could provide care for your child.
How long can the Infectious Disease Emergency Leave last?
There is no maximum number of days for this leave.
The Infectious Disease Emergency Leave will last for as long as you need to care for your child for a reason related to COVID-19, and while COVID-19 is a designated infectious disease.
What else should I know about this leave?
While on this unpaid leave, you are entitled to participate in employer benefit plans unless you opt not to in writing. Your employer must pay its share of the premiums and you may be required to pay the employee share.
If you are a union member, you must continue to pay your dues and your seniority should normally continue to accrue.
There are other leaves under the Employment Standards Act that may apply to your situation. Find out about other leaves here.
How about job-protected leave for federal employees?
Like the Ontario Employment Standards Act, the Canada Labour Code has new “Leave Related to COVID-19” provisions for federal employees impacted by COVID-19.
Employees who work for federally regulated employers and are unable to return to work following a pregnancy or parental leave for reasons related to COVID-19 would likely be eligible for this new leave. The leave is unpaid and capped at 16 weeks.
Is there a paid benefit I can receive from the government while taking a job-protected leave?
Yes. The Canada Emergency Response Benefit (“CERB”) provides for direct payments to workers economically affected by COVID-19. This includes parents or caregivers who must stay home without pay to care for children who are sick or at home because of school or daycare closures.
The CERB will provide eligible workers with $500 per week for 4 weeks and, as announced by the Prime Minister on June 16, 2020, it is now renewable to a maximum of 24 weeks. The CERB will be available between March 15 and October 3, 2020. To learn more about the CERB, see our post on COVID-19 worker income supports.
When should I apply for the CERB?
To avoid any gaps in payment, you can apply for the CERB before you stop receiving pregnancy or parental benefits. That way, the CERB payments can begin once your pregnancy or parental benefits cease. You should also apply for the CERB via the application available through Canada Revenue Agency because Service Canada has been having difficulty processing CERB applications from individuals returning from pregnancy or parental leave.