The Ontario government recently made two significant changes to the Employment Standards Act, 2000 (the “ESA”) as a consequence of the COVID 19 pandemic.

The first one took effect on March 19, 2020 and the most significant aspect of it relates to the repeal of the former provisions of section 50.1 (“Emergency Leave, Declared Emergencies”) and its replacement with a new section 50.1 (“Emergency Leave: Declared Emergencies and Infectious Disease Emergencies”).

The second one took effect on May 29, 2020 and relates to the addition of a new regulation entitled “Infectious Disease Emergency Leave”.

Though I will discuss some of the details below, in general terms, under the new section 50.1, employees are entitled to take a leave of absence without pay if they are unable to perform their duties because of a declared emergency or because of an infectious disease-related matter or they have to provide care or assistance to relatives and other specified individuals for those reasons. If the employee takes such a leave of absence, he/she will be afforded the benefits of the leave provisions of the ESA and the employer is subject to the leave obligations under the Act.

The new regulation, however, automatically deems employees whose hours of work are temporarily reduced or eliminated for reasons related to COVID 19, to be on leave during the defined “COVID 19 period”, which is described below. Therefore, unlike an employee who may choose to take a leave of absence under section 50.1, if the individual falls within the define category of employee stipulated in the regulation, he/she will already be considered to be on leave. In that case, the regulation also specifies the dates from which the employee is deemed to have been on leave and the regulation also modifies some of the usual rights and obligations that would otherwise apply to a leave and it modifies the Act’s provisions relating to constructive dismissal and lay offs.

The language of the new section 50.1 is relatively straightforward. The wording of the regulation is, however, a bit more difficult to follow because it makes references to several sections in the ESA and, therefore, both must be read together. What follows is a very brief summary only.

The New Section 50.1 – Emergency Leave: Declared Emergencies and Infectious Disease Emergencies

The ESA contains several provisions relating to leaves of absence which an employee may take in various circumstances such as parental leave, sick leave and pregnancy leave, just to name a few. Now, as a result of the new amendment to s. 50.1, an employee may also take a leave of absence because of circumstances relating to the COVID 19 pandemic, provided he/she meets the specified requirements. By designating this additional leave entitlement, an employee who is entitled to take such under the ESA.

I will quote from part of the amended section as follows:

(1.1) An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position,
(a) because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and,
(i) because of an order that applies to him or her made under section 7.0.2 of the Emergency Management and Civil Protection Act,
(ii) because of an order that applies to him or her made under the Health Protection and Promotion Act,
(iii) because he or she is needed to provide care or assistance to an individual referred to in subsection (8), or
(iv) because of such other reasons as may be prescribed; or
(b) because of one or more of the following reasons related to a designated infectious disease:
(i) The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
(ii) 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.
(iii) 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.
(iv) 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.
(v) The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
(vi) 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.
(vii) Such other reasons as may be prescribed.

There are other important subsections in the new section 50.1, which describe the evidence the employer is entitled to obtain from the employee proving that he/she is entitled to such leave, the limits to the duration of the leave and the list of individuals to whom the employee is entitled to provide care and support for the purpose of this leave, but I will not quote or discuss them in further detail in this article.
This recent amendment to the ESA also included amendments to the section regarding regulations to be made under the Act, which I will also not discuss at this time.

The New Regulation – Infectious Disease Emergency Leave

As noted above, while the amendment to section 50.1 gives the employee the opportunity to take a leave of absence, the new regulation effectively deems certain employees who have been effected by the pandemic to have been on leave.

As mentioned above, this new regulation must be read together with the various sections of the ESA that it mentions and although the regulation has several sections, all of which are important, I will only highlight a few of them as follows:

• The regulation defines a “COVID 19 period” retroactive to March 1, 2020 and extending 6 weeks after the state of emergency is terminated. The current state of emergency in Ontario has recently been extended to June 30, 2020 and, assuming the June 30th date does not change, the regulation would, therefore, terminate on August 11, 2020.
• Entitlement to emergency leave under section 50.1(1.1)(b) because of the reasons set out in section 50(1.1)(b)(i)-(vi) related to COVID 19 is deemed to have started on January 25, 2020.
• If “(t)he employee’s hours of work are temporarily reduced or eliminated by the employer for reasons related to the designated infectious disease”, then that is the “prescribed” reason for leave for the purpose of section 50.1 (1.1)(b)(vii) and I will be refer to it hereafter as the “COVID Reason”. The entitlement to leave for the COVID Reason is deemed to have started on March 1, 2020 and applies during the COVID 19 period. An employee who does not perform his/her duties for the COVID Reason is deemed to be on infection disease emergency leave under section 50.1 in respect of any time during the COVID 19 period he/she does not perform such duties because of that reason.
• If an employee is deemed to be on leave because of the COVID Reason:
• He/she is exempt from having to advise the employer of the reason for taking leaving
• If the employee stopped participating in a benefit plan as of May 29, 2020, the employee is exempt from the right to continue participating in the benefit plan during the COVID 19 period and if the employer was not making, as at May 29, 2020, contributions to the benefit plan, the employer is exempt from making contributions to the benefit plan during the COVID 19 period.
• Nothing affects any payments or benefits the employee received from the employer between March 1, 2020 and May 29, 2020.
• Employees who were terminated under s. 56 (1)(a) [i.e. the employee has been dismissed] or severed under s. 63 (1)(a), (d) or (e) [i.e. the employee is dismissed, the employee has been laid off because of a permanent discontinuance of the business, the employer gives written notice of termination under sections 57 or 58, the employee gives at least two weeks written notice of resignation and the notice takes effect during the statutory notice period] on or after March 1, 2020, are not considered to be on leave for the COVID Reason.
• Employees terminated under s.56 (1)(b) or (c) [i.e. the employer constructively dismisses the employee or the employee has been laid off for longer than the stipulated temporary lay off period] or severed under s. 63(1)(b) or (c) [i.e. the employee has been constructively dismissed or the employer has laid off the employee for 35 weeks or more in any period of 52 consecutive weeks] before May 29, 2020 are not considered to be on leave for the COVID Reason.
• An employee whose hours have been temporarily reduced or eliminated for the COVID Reason are not deemed to have temporarily laid off, unless there had been deemed dismissal of the employee before May 29, 2020.
• Subject to certain exceptions, an employee whose hours have been temporarily reduced or eliminated for the COVID Reason or whose wages have been temporarily reduced for the COVID Reason are not considered to have been constructively dismissed.
• Subject to certain exceptions, if an employee has filed a complaint with the Ministry that the temporary reduction or elimination of hours or the temporary reduction in wages constitutes a termination or severance of employment, it shall be deemed not to have been filed if the reduction or elimination occurred during the COVID 19 period for the COVID Reason.

The regulation also raises some potential issues that will only be sorted out through litigation. For example, there is some debate about whether the regulation’s wording has any effect on the common law relating to constructive dismissal or does it just relate to the ESA? This is just another of many uncertainties in the law created by the pandemic. There will be more to come.

June 5, 2020

Jeffrey A.L. Kriwetz

E-mail: jkriwetz@garfinkle.com

Direct Line: 416.869.7618

Mobile: 416.606.3670

*Please note: The views and comments expressed in this article are those of the writer and have been provided for information purposes only. Nothing in this article should be relied on as specific legal advice in any particular case. For such advice, please contact the writer directly.