Dan Sheppard reviews Bill 186
Dan Sheppard reviews Bill 186, which expands emergency leave job protections under the Employment Standards Act.
Bill 186 – the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020
On March 19, 2020, the Legislative Assembly of Ontario was recalled to enact legislation in response to the COVID-19 pandemic. Two bills were passed on an expedited basis: one to permit municipal councils, local boards, and committees to meet though electronic means, and one to provide for job protections for individuals as a result of COVID-19. This summary focuses on the job-related legislation, Bill 186: the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020.
Prior to Bill 186, the Employment Standards Act, 2000 (“ESA”) provided for a job-protected leave without pay in certain circumstances where an emergency is declared under the Emergency Management and Civil Protection Act [“EMCPA”]. Workers are entitled to take job protected leave only in relatively narrow circumstances: when they are not performing their job duties because they are subject to an order under the EMCPA itself or the Health Protection and Promotion Act [“HPPA”], or because they are required to provide care to one of seven kinds of designated close family members. The leave would last only so long as the declaration of emergency under the EMCPA continued.
Bill 186 expands this leave entitlement to cover the current COVID-19 pandemic, as well potential future emergencies related to infectious diseases.
Grounds for Taking Leave
Under Bill 186, the provincial Cabinet is empowered to make regulations designating an infectious disease: ESA, s. 141(2.1)(a). As long as a designation is in effect, a person may take an unpaid, job protected leave if they are unable to work for any of the following reasons:
- Where the employee is under individual medical investigation, supervision or treatment in relation to the designated disease: ESA, s. 50.1(1.1)(b)(I).
- Where the employee is acting in accordance with an order made under either section 22 or 35 of the HPPA: ESA, s. 50.1(1.1)(b)(ii). These sections permit a Medical Officer of Health and the Ontario Court of Justice, respectively, to order a person to do or refrain from doing certain things in order to prevent, reduce or eliminate the risk of the spread of a communicable disease.
- Where the employee is in quarantine, isolation, or is subject to a control measure (such as self-isolation) in response to information or directions issued to the public, a group, or an individual from one of a number of sources: ESA, s. 50.1(1.1)(b)(iii). These include public health officials, any qualified medical practitioner (e.g. doctors, nurses), Telehealth Ontario, or a municipality, the Government of Ontario or the Government of Canada.
- Where the employee is directed by their employer not to perform their job duties due to a concern that they might expose others in the workplace to the designated infectious disease.
- Where the employee is providing support or care to one of a specified class of family members due to the designated infectious disease. This ground explicitly includes obligations arising due to the closure of schools or day care facilities: ESA, s. 50.1(1.1)(b)(v). The class of family members who are captured by this provision is broader than what previously existed under the legislation, and now encompasses any individual who considers the employee to be “like a family member”: ESA, s. 50.1(8)12.
- Where the employee is directly affected by travel restrictions related to the designated infectious disease, such that they cannot reasonably be expected to travel back to Ontario: ESA, s. 50.1(1.1)(b)(vi).
Cabinet may also make regulations that set out additional grounds for which this leave may be taken: ESA, s. 50.1(1.1)(b)(vi).
Currently, diseases caused by a novel coronavirus, including SARS, MERS and COVID-19 have been designated: Infectious Disease Emergency Leave, O.Reg 66/20, s. 1(1).
Duration of the Leave
A leave under this section may last for as long as the relevant disease continues to be designated, and the listed ground continues to apply. There is no maximum number of days.
Cabinet is given the power to make its regulations retroactive, including with respect to the designation of an infectious disease: ESA, s. 141(2.2.1).
The regulations may also deem that a person who did not perform their job functions before a designation is made is retroactively deemed to have taken a leave under the Act: ESA, s. 141(2.2)(b).
The regulation made under this power was made retroactive to January 25, 2020: O.Reg 66/20, ss. 2-3. In other words, as of January 25, 2020, COVID-19 was designated as an infectious disease, and any person who was not performing their job duties due to one of the six listed reasons was deemed to be taking Designated Infectious Disease Leave under the ESA.
Who is Covered by this Provision?
The ESA only applies to some workers in Ontario. The Act does not apply to several categories of workers, including:
- Co-op placements though secondary schools, universities or colleges;
- Participants in community participation projects under the Ontario Works Act;
- Inmates in correctional institutions, penitentiaries or youth custody facilities;
- Political, religious, judicial or adjudicative tribunal members;
- Elected officials, including trade union officials;
- Corporate directors; or
- Police officers: ESA, s. 3(5).
The new amendments specifically contemplate that this leave may be extended, in whole or in part, to police officers by way of regulation: ESA, ss. 3(5)10, 141(2.1)(c).
What Evidence is Required to Take a Leave?
For most leaves under the ESA, employers are entitled to require employees to provide evidence that is “reasonable in the circumstances” to establish their entitlement to the leave. For designated infection disease leaves, the legislation imposes two caveats. First, the employee only needs to provide the evidence “at a time that is reasonable in the circumstances”. Second, employers are not allowed to require a certificate from a qualified health practitioner (e.g. a doctor’s note): ESA, s. 50.1(4.1).
Are Workers Entitled to Pay during a Leave?
The amendments only provide for job protections during leave. It does not provide for any entitlement to pay.
Workers taking leave under these rules may be entitled to Employment Insurance benefits. However, EI rules are complex and many workers are not entitled to them.
Moreover, the Federal government has announced a broad package of new financial supports for workers. Some of those changes have already been implemented though changes to the EI Regulations, but others will require legislation.
At this time, it is not clear how the new Federal supports will match up with the new Provincial leave. Goldblatt Partners is monitoring federal changes, and will provide more guidance on federal financial benefits shortly.
Interaction with other Leave Entitlements
The entitlement to leave in response to a designated infectious disease is in addition to all other leave entitlements under the ESA: ESA, s. 53.1.
Several of the pre-existing leaves under the ESA could apply to workers coping with COVID-related issues in some circumstances. These include:
- Sick leave under s. 50;
- Family responsibility leave under s. 50.0.1;
- Family medical leave under s. 49.1;
- Family caregiver leave under s. 49.3; or
- Critical illness leave under s. 49.4.
Some of these leaves can also attract less well-known EI entitlements under federal legislation.
The availability of these leaves (and, where applicable, associated benefits) would depend on the specific facts of a given case.
Interaction with Collective Agreements
The Employment Standards Act applies to both unionized and non-unionized workers. Where workers are covered by a collective agreement, they still maintain access to all ESA entitlements unless their collective agreement provides them with a greater right or benefit: ESA, s. 5(2). As this is a new leave entitlement, it is unlikely that collective agreements would provide a greater right or benefit, and so unionized workers should have access to this leave.
However, a greater right or benefit analysis is notoriously complex, and will turn on the specific language of a collective agreement. Unions should seek legal advice if they have a question about the applicability of this new leave to their members.
Concerns with the Legislation
On first review, the new leave entitlement appears to apply to most employees impacted by COVID-19. However, some serious gaps may remain.
The most significant is that the new leave entitlement is entirely unpaid. Given the many workers in Ontario who do not have access to EI Benefits, the job protected leave should have provided for pay, at least for the first 14 days – the minimum amount of time that individuals are being asked to self-isolate. Businesses are expected to receive direct financial support from both the federal and provincial governments. Ensuring continued pay to employees who respect requests from public health officials would be a reasonable requirement.
In this respect, it is notable that the government of Alberta has announced its plans to implement a 14-day paid job protected leave.
The legislation could also have been clearer in terms of individuals who follow advice to “voluntarily” self-isolate, but are not subject to any order to do so. The best reading of the legislation is that voluntary self-isolation is covered by s. 50.1(1.1)(b)(iii) of the ESA, which permits leaves taken for self-isolation in accordance with “information” provided by various public officials. However, it would have been preferable had the provision specifically referred to “recommendations”.
With respect to the obligation to provide evidence of entitlement, the ban on requiring medical notes is welcome. Indeed, this ought to be the general rule for all medical-related leaves. However, given the circumstances, it is not clear why it is in the interests of public health to require any evidence to be provided so long as COVID-19 is a designated infectious disease. The requirement may encourage unreasonable employers to discourage leave and lead to needless disputes. We hope that the requirement to only demand such evidence “at a time that is reasonable in the circumstances” will be read appropriately to not require any evidence until this public health emergency is over.
With respect to inability to work due to travel bans, the legislation currently only covers restrictions that make it unreasonable to return to Ontario. As matters develop, it is possible that governments could enact emergency measures that would prohibit movement within Ontario. No such rules currently exist, but if they were implemented, it is not clear that this leave entitlement would apply.
Finally, it is not clear why certain categories of workers continue to be denied access to this (and other) job protected leaves. At a minimum, regulations should be enacted to ensure that police officers have access to this leave, particularly in light of the critical front-line role that they play, and their inability to practice social distancing in many circumstances.
Goldblatt Partners continues to monitor the legislative landscape at the federal, provincial and municipal levels, and will continue to update our analysis as circumstances change.