Changes to ESA Unpaid Leave to Respond to COVID-19

On March 19, 2020, the Province of Ontario passed Bill 186, to amend the Employment Standards Act to expand employees' ability to take unpaid leave in response to COVID-19.

What Stays the Same 

As was the case before these new amendments were passed, an employee is still able to take an unpaid leave of absence from work if unable to fulfill their duties because he or she is subject to an order under the Emergency Management and Civil Protection Act (EMCPA) and the Health Protection and Promotion Act (HPPA), if he or she is needed to care for or assist a family member (although the definition of such persons has been vastly expanded), or for any other reason determined by the government.

Examples of recent orders under the EMCPA include the Province's orders to declare a state of emergency, limit the number of people who can gather in public, and close certain businesses. The EMCPA and HPPA provide the government with broad power to issue orders as may become necessary.

An employee's leave is still deemed to commence on the first day the employee did not perform his or her duties as a result of being subject to such an order.

What's New 

Expanded Grounds for Unpaid Leave

An employee is now also able to take an unpaid leave of absence from work in relation to a “designated infectious disease” (which the government has presently defined through regulation as Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and Coronavirus (COVID-19)) if that employee cannot perform his or her duties as a result of:

1. Being under medical investigation, supervision, or treatment related to that disease;
2. Acting in accordance with an order under the Health Protection and Promotion Act related to that disease; 
3. Being in quarantine or isolation or subject to a control measure, and this measure was implemented in response to information or directions issued to the public by a health official or any healthcare worker (nurses, doctors, etc.) in relation to that disease; 
4. A direction by the employer to the employee due to a concern the employee may expose others to that disease; 
5. Having to care for a family member as a result of the disease, including due to any school or day care closures;
6. Being stranded outside of Ontario and unable to reasonably return to Ontario; or 
7. For any other reason as may be prescribed at law.  

An employee can thus take an unpaid leave of absence from work for a broad range of reasons while the Province has issued specific advice or orders to respond to a public health crisis such as COVID-19.

The list of family members for the purposes of taking an unpaid leave in order to care for a family member (i.e. no. 5, above) under section 50.1 of the ESA has been significantly expanded. The expanded list, found at section 50.1(8), now includes:

1. The employee’s spouse;
2. A parent, step-parent or foster parent of the employee or the employee’s spouse;
3. A child, step-child or foster child of the employee or the employee’s spouse;
4. A child who is under legal guardianship of the employee or the employee’s spouse;
5. A brother, step-brother, sister or step-sister of the employee;
6. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
7. A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
8. A son-in-law or daughter-in-law of the employee or the employee’s spouse;
9. An uncle or aunt of the employee or the employee’s spouse;
10. A nephew or niece of the employee or the employee’s spouse;
11. The spouse of the employee’s grandchild, uncle, aunt, nephew or niece;
12. A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met; or
13. Any individual prescribed as a family member for the purposes of this section.

One area of confusion, however, is whether the list includes a common-law partner in the definition of a "spouse". The now-repealed section 50.1(9) previously adopted the definition of a "spouse" at section 45 of the Act, which defines a spouse as someone who is either (a) married, or (b) cohabiting with someone "in a conjugal relationship outside of marriage". While section 50(8)12 states "A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met", it is not clear what these "prescribed conditions" are. Regardless of this confusion, the best practice is likely for employers to permit employees to take unpaid leave to care for a common law spouse who has contracted COVID-19 not only to avoid prosecution, but to stop the spread of COVID-19 to other workers.

Relaxed Proof Requirements

An employee does not have to provide their employer with a certificate or note from a doctor, nurse, or other healthcare practitioner as evidence to justify taking unpaid leave in relation to a "designated infectious disease" such as COVID-19. However, an employee must still provide reasonable evidence in the circumstances at a reasonable time given the circumstances to justify the leave. While some evidence must still be provided when it is reasonable to do so, the type of evidence required has been relaxed.

Length of Unpaid Leave

An employee is entitled to take a leave with respect to a “designated infectious disease” such as COVID-19 until such time as the reason for taking that leave no longer exists. For instance, if the period of self-isolation, quarantine, or other direction from a healthcare practitioner expires, the leave ends. It may also end if, for instance, the employee can place his or her child back into a daycare that re-opens after having been closed for any reason related to COVID-19, or if the employee no longer needs to care for a family member infected with the disease and it is otherwise safe for the employee to resume work.

Note: while this blog and the information above provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. For more information about unpaid leaves of absence, or if you have any other questions regarding your employment issue, please contact our office for a consultation with one of our lawyers.