Infectious Disease Emergency Leave
The Employment Standards Act was recently amended to include a new job-protected leave of absence to help workers who need to stay home for reasons related to the current coronavirus pandemic such as to quarantine or to provide childcare. The Infectious Disease Emergency Leave is intended to protect a worker’s job in the event that they are unable to work due to COVID-19.
(The Employment Standards Act provides for several job-protected leaves of absence available to employees and you can learn more about leaves of absence here).
According to the Government of Ontario, “employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease.”
Presently, COVID-19 is the only disease for which employees make take this specific leave of absence. While this leave came into effect in March of this year, it applies retroactively to the 25th of January, 2020.
All employees who are covered by the Employment Standards Act are entitled to take this leave of absence. As with other leaves of absence, an employee cannot be threatened, terminated or in any way penalized by their employer for taking or planning to take this leave of absence.
As with all leaves of absence, there are specific conditions that must be met in order for an employee to take the Infectious Disease Emergency Leave. Employees may take this leave of absence if:
- They are under investigation of or treatment for COVID-19
- They are following a COVID-19 related order under the Health Promotion and Protection Act
- They are in quarantine issued by a public health official, qualified physician or nurse, Telehealth Ontario, the Government of Ontario or Canada, a municipal council or the board of health
- They are directed by their employer to stay home in response to their employer’s concern that they might expose other workers to the disease
- They are caring for certain individuals (such as a spouse, parent or child) due to COVID-19
- They are impacted by travel restrictions due to COVID-19 and are unable to return to Ontario
Infectious Disease Emergency Leave, Constructive Dismissal and Layoffs
On 1 June, the Ontario Government made changes to the Infectious Disease Emergency Leave to address the issue of non-unionized workers who had been laid off due to the pandemic. Under the new rules, workers who were laid off due to COVID-19 would now be deemed to be on this new leave of absence instead of being laid off. For some workers, this means that they will not be able to claim constructive dismissal, or severance or termination pay. What’s more, under these new regulations, employees can essentially be laid off indefinitely, whereas in the past, a temporary layoff became a termination after 13 weeks and would be accompanied by appropriate termination and, when applicable, severance pay.