In response to COVID-19, the provincial government introduced a regulation to allow employers (in certain circumstances) to reduce employee wages and hours due to COVID-19 without triggering a constructive dismissal under the Employment Standards Act, 2000 (“ESA”). This is primarily achieved by deeming these employees to be on a leave of absence under the ESA (called the Infectious Disease Emergency Leave), rather than a temporary layoff which would not have been able to last beyond a set period of time. I outlined this regulation, O. Reg. 228/20 (“the regulation”) and its implications for employers in a previous article dated September 15, 2020. This deemed leave of absence is still in place (provided that the employer has met the conditions necessary for its application) and is not set to expire until January 2, 2021. Of course, the government may intervene again to extend the expiry date of the deemed leave of absence.
However, the Infectious Disease Emergency Leave (“IDEL”) does not simply apply when it is initiated by an employer who is trying to keep their operational costs low. Employees may also initiate the leave of absence. Under section 50.1(1.1) of the ESA, an employee is entitled to take a leave of absence without pay if the employee will not be performing the duties of his or her position because of the following non-exhaustive reasons:
- under medical investigation, supervision or treatment for COVID-19
- acting in accordance with an order under the Health Protection and Promotion Act
- in isolation or quarantine or acting in accordance with public health information or direction
- directed by the employer not to work due to a concern that the employee could spread COVID-19 in the workplace
- providing care or support to a specified individual (such as a child) for a reason related to COVID-19 such as a school or child care closure or where an employee does not send their child to school or to child care because of a concern that the child will come into contact with COVID-19
- prevented from returning to Ontario because of travel restrictions
There is no specified limit on the number of days an employee can be on this leave, and the leave can be taken in part days. An employer may require an employee to provide evidence “reasonable in the circumstances” at a time that is “reasonable in the circumstances” that the employee is eligible for infectious disease emergency leave but employers cannot require an employee to provide a certificate from a healthcare practitioner as evidence. What is considered reasonable in the circumstances will depend on all the facts of the situation, such as: the duration of the leave; whether there is a pattern of absences; and, whether any evidence is available and the cost of the evidence.
Many employers may be finding it difficult to avoid abuse of these provisions. For example, given that an employer cannot require the employee to produce a medical note to prove entitlement to the leave of absence, some employees may could be using the leave as an opportunity to take an unpaid vacation. If an employer suspects that an employee may be abusing the leave of absence, there are ways to respond but the employer needs to be very cautious. Because the IDEL is statutorily protected, the reprisal provisions under the ESA apply. Therefore, much like when an employee is taking parental leave, the employer cannot threaten or penalize the employee in any way because the employee took the leave or indicated that they wanted to take the leave. If it is found that an employer did commit a reprisal, the employee may sue for damages, or even claim other remedies which would not otherwise be available to the employee (like reinstatement and/or backpay).
With that said, an employer is not completely powerless. For example, if an employee is claiming that they need to take time off due to the closure of a daycare facility, the employer may be able to request evidence to verify entitlement, such as a note from an employee’s daycare provider indicating that the childcare centre was closed because of COVID-19. Employers should be reasonable in requesting evidence (and not be overly burdensome) but they can be creative. While an employer cannot request a doctor’s note, it can request evidence “reasonable in the circumstances” to verify entitlement. This will help employers to avoid potential abuse of the IDEL.
At Lerners LLP, we are well-equipped to assist employers in navigating the IDEL. Our lawyers would be happy to assist you.