Note: This information is current as of March 17, 2020. We will highlight any updates as time permits.
Update: On March 19th, in an emergency session of the provincial legislature, the provincial government unanimously, and on consent, passed the Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. As noted in Premier Ford’s announcement earlier this week, Bill 186 amends the ESA to provide additional support for workers who are impacted by COVID-19.
The terms of Bill 186 are available here, and our March 20th blog summarizes the details.
Canadians, and indeed people around the world, are currently experiencing unprecedented public health and safety concerns. While there have been other examples of health pandemics in history (the Spanish Flu, Swine Flu and SARS), there has never been a virus which has impacted, and indeed infected, such a large percentage of the world’s population. In fact, the World Health Organization is calling this “one of the defining issues of our time”. On March 17, 2020 at 8:30am, Premier Doug Ford declared a State of Emergency for the Province of Ontario.
In addition to the recommendations to practice “social distancing”, the federal, provincial, and municipal governments made stronger recommendations on March 16, 2020 which include the following:
all Canadians who are abroad should return to Canada immediately;
self-isolation for those who have recently returned from abroad; and
immediate restrictions to cross-border travel effective immediately.
With the declaration of a State of Emergency in Ontario on March 17th, the following additional prohibitions have been ordered:
the immediate closure of all private schools and licensed daycares;
the immediate closure of certain businesses, such as bars, restaurants, cinemas and theatres, except to provide takeout food and delivery; and
prohibition of large gatherings (over 50 people).
New Emergency Leaves under Bill 186
Important for Ontario employers, the provincial government has announced its intention to amend the Employment Standards Act, 2000 (“ESA”) to provide immediate job protection for employees who have received medical or public health advice and are quarantined or isolated due to COVID-19 symptoms or diagnosis, or who have been away from work to care for children because of school or daycare closures, since January 25, 2020. As noted by Premier Doug Ford, “no one should lose their job because they listened to the best advice of medical professionals”. The details of the leaves are listed in our new blog.
Availability of Employment Insurance Sickness Benefits
Monte McNaughton, Minister of Labour, Training and Skills Development, confirmed that many workers would be eligible for Employment Insurance Sickness Benefits, for which the Federal Government eliminated the one-week waiting period last week, and it is anticipated that payment obligations to employees will continue to fall to the federal government through employment insurance. Minister McNaughton confirmed that he continued in discussion with the federal authorities regarding access and availability of EI benefits.
PH Tips
Respecting the changes to the ESA is not all that an employer must do in response to the pandemic. Ontario employers must remember it is not “business as usual” and should
continue to assess requests or “recommended” COVID19-related absences on a case-by-case basis and with reference to current government directives;
be prepared to address questions regarding workplace safety and business continuity;
encourage employees who are experiencing symptoms or who may have come into contact with someone who has tested positive to COVID-19 to take advantage of existing statutory leaves of absence which may be available to them;
allow employees who are returning from travel from anywhere outside of Ontario to remain at home (in order to self-isolate) on an unpaid leave for 14 days;
continue to comply with their obligations under the Occupational Health and Safety Act and assess the risk of workers who are symptomatic or who have come into contact with someone who has tested positive for COVID-19. In such cases, the employer may be able to require the employee to remain at home on an unpaid leave of absence in order to mitigate against further spread of the illness in the workplace;
assess employees’ refusals to work in good faith;
fulfill the duty to accommodate employees under the Human Rights Code given the OHRC’s policy statement that “negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code”;
allow employees with caregiving responsibilities to take an unpaid leave of absence or adjust their working hours;
offer alternative work arrangements if employees are well enough and able to work from home, including adjusted or reduced hours; and
confirm that employees who do not wish to be away on an unpaid leave may elect to use accrued vacation or available paid sick days (if available under their contract of employment) for any absence from work. Employees should also be encouraged to apply for EI Sickness Benefits.