COVID-19 and its impact on society are significant and unprecedented. In many parts of the world, society has essentially been put on pause – social distancing requiring many areas to temporarily close all inessential services. This has had a substantial impact on many employment situations, as all those who can work at home are strongly encouraged or required to do so. In the name of public health and safety, many businesses are closed and/or losing significant income, resulting in layoffs and terminations, and many people are quarantined due to potential exposure to the virus.
Governments have had to respond quickly to do their best to protect people from all the consequences of the pandemic, including those who are either unable to work or told not to. The Ontario Legislature has passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (the “Act”) in a step to protect those whose employment is affected by COVID-19. Specifically, it amends the Employment Standards Act to provide job protection and leave to employees who need to be away from work due to designated infectious diseases.
The following people receive job protection under the Act:
- Employees under medical investigation, supervision or treatment for designated infectious diseases;
- Employees acting in accordance with an order under the Health Protection and Promotion Act;
- Employees in isolation or quarantine in accordance with public health information or directions;
- Employees who have been directed by their employer not to work due to concerns that a designated infectious disease could spread in the workplace;
- Employees who need to provide care to a person for reasons relating to a designated infectious disease (for example, if the employee needs to provide childcare due to school or day-care closures); and
- Employees who are prevented from returning to Ontario due to travel restrictions relating to designated infectious diseases.
At this point, the only “designated infectious disease” is COVID-19. However, should another similar situation occur in the future, the infectious disease can be designated as such for the purposes of the Act.
Importantly, an employee is now able to take “infectious disease emergency leave” to take care of a wide range of individuals, including spouses, relatives, and extended family.
Importantly, employees are not required to provide a medical note for the purposes of infectious disease emergency leave. However, they may be required to provide some evidence that the leave is required where it is reasonable under the circumstances. This allows employers to request evidence where they have legitimate reasons to question the legitimacy of the leave while ensuring that potentially infectious employees are not required to seek in-person care where unnecessary or infringe on family members’ privacy.
Although the Act does not solve all the employment-related consequences of the pandemic, it provides some necessary job protection to those affected, which could, in turn, result in safer responses to COVID-19 and the need for social distancing.