I'M IN AN "ESSENTIAL WORKPLACE" - DO I HAVE TO GO TO WORK? I'M WORRIED. NOT IF YOU QUALIFY FOR EMERGENCY LEAVE

The Ontario Government has ordered the mandatory closure of all non-essential workplaces, effective March 24, 2020 at 11:59 p.m. This order will be in effect for fourteen days with the possibility of being extended as the circumstances evolve.

Here is a list of “essential workplaces” in Ontario, as declared:

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For the purposes of this order, businesses include any for-profit, non-profit or other entity providing the goods and services described by the list. This does not preclude the provision of work and services by entities not on the list either online, by telephone or by mail/delivery. Furthermore, teleworking and online commerce are permitted at all times for all businesses. Businesses can operate virtually and remotely, in other words.

If there is any issue whether an organization constitutes an “essential workplace”, the Government also announced that it will be setting up a 1-800 number and Web site for inquiries.

If your employer is an “essential workplace”, you may be legally permitted not to attend work due to COVID-19.

Your position will be job-protected, but your employer will not be required to pay your regular pay during your leave of absence. However, the federal Government has established new employment insurance (“EI”) benefits to correspond with these measures by Ontario. They are intended to work together. 

Employer’s Duty to Provide a Safe Work Environment:

Firstly, for background on the issue, employers have an obligation to ensure the safety of their workers under occupational health and safety legislation. That obligation includes taking every reasonable precaution in the circumstances for the protection of their workers, even in the situation of a pandemic. They are expected to put the necessary measures in place to protect workers from infectious diseases, and inform, instruct and supervise workers in order to protect their health and safety.

Since March 13, 2020, the Public Health Agency of Canada and various other public health authorities have recommended that Canadians self-isolate for a period of fourteen days if:

  • they have travelled anywhere outside of Canada (including the United States of America).
  • they live with, provided care for, or spent extensive time with someone who:
    • has tested positive for COVID-19; or
    • is suspected of having COVID-19; or
    • has respiratory symptoms (fever, cough, or shortness of breath) that started within fourteen days of travel outside of Canada.

If you meet any of these requirements, you should immediately self-isolate at home only.

New Infectious Disease Emergency Leave (i.e., COVID-19):

We now have "declared emergency" and "infectious disease emergencies" leaves of absence from the workplace, per the new legislation the Ontario government passed very recently, retroactive to January 25, 2020; namely, Bill 186 – the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, to amend the job-protected leaves of absence under the Employment Standards Act, 2000 (ESA) (“Bill 186).

Under this new legislation, employees of “essential workplaces” are entitled to take an unpaid leave of absence if they are unable to work for any of the following reasons:

- the employee is under individual medical investigation, supervision, or treatment, in connection with COVID-19;

- the employee is acting in accordance with an order by a medical officer of health or by the Ontario Court of Justice under the Health Protection and Promotion Act;

- the employee is in isolation, quarantine, or subject to some other control measure (including self-isolation) where the employee is acting in accordance with public health information or directions issued by a public health official, a qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or board of health;

- the employee is acting in accordance with a direction of the employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;

the employee needs to provide care or support to a specified individual (as set out below), for example because of a school or daycare closure;

- the employee cannot return to Ontario as a result of travel restrictions related to the designated infectious disease; and/or

- any other reasons(s) that the Government may further declare.

Incidentally, COVID-19 has been designated as a designated infectious disease.

For both declared emergencies and designated infectious disease emergencies, the leave is available if the employee cannot perform their job duties as a result of having to provide care or support for a specified individual. Bill 186 significantly expands the list of specified individuals to increase the availability of the leave. The specified individuals for the purposes of these leaves are:

- the employee’s spouse;

- a parent, step-parent or foster parent of the employee or the employee’s spouse;

- a child, step-child or foster child of the employee or the employee’s spouse;

- a child who is under legal guardianship of the employee or the employee’s spouse;

- a brother, step-brother, sister or step-sister of the employee;

- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;

- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;

- a son-in-law or daughter-in-law of the employee or the employee’s spouse;

- an uncle or aunt of the employee or the employee’s spouse;

- a nephew or niece of the employee or the employee’s spouse;

- the spouse of the employee’s grandchild, uncle, aunt, nephew or niece;

- a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met; and

- any individual prescribed as a family member by the Government for the purposes of the above.

Employees wishing to take this Infectious Disease Emergency Leave will not be required to provide a medical note to employers. However, employers can require that employees provide evidence that is reasonable in the circumstances (at a time that is reasonable in the circumstances) to substantiate their absence. The official for Bill 186 suggests that employers can request things such as a note from a daycare or evidence of a cancelled flight. Employers are permitted to request supporting evidence of entitlement from an employee who takes the leave; however, this right is somewhat qualified. The evidence requested must be “reasonable in the circumstances” and must be provided at a time that is also “reasonable in the circumstances.” Importantly, the employer is not permitted to request a medical certificate as evidence of entitlement to the leave.

The job protection under Bill 186 is retroactive to January 25, 2020, which is the date that the first presumptive COVID-19 case was confirmed in Ontario. The Ontario Government indicates that these measures will remain in place “until COVID-19 is defeated”.

Declared Emergency Leave:

In addition to the Infectious Disease Emergency Leave, the Declared Emergency Leave remains available to all employees, if an employee cannot perform his or her job duties as a result of a declared emergency under Ontario’s Emergency Management and Civil Protection Act (EMCPA) and:

- because of an order that applies to the employee under the EMCPA;

- because of an order that applies to the employee under the Health Protection and Promotion Act;

- because the employee is needed to provide care or assistance for a specified individual (as set out above); or

- any other reason that may be prescribed by the Government.

The Declared Emergency Leave is also unpaid and will be available for the duration of the declared emergency.

General:

The usual ESA protections for statutory leaves of absence apply equally to these new emergency leaves, including anti-reprisal provisions, the right to continue to participate in certain benefits unless the employee opts not to continue to pay their share of the premiums (if any), and the right to reinstatement.

COVID-19 continues to have a significant impact on Canadian workplaces resulting in employers having to layoff staff due to work shortages and temporary closures. Employers should proceed with caution and obtain legal advice before seeking to temporarily layoff an employee who may be eligible for an ESA leave. The amendments also provide flexibility to employees in terms of providing supporting evidence of the entitlement to the leave. It is conceivable that in certain circumstances, it would be reasonable for an employee to provide evidence after the leave is taken.

Should My Employer Pay Me During my Emergency Leave?

The question of whether an employer should remunerate an employee during the fourteen-day shutdown period can be complex. There is no one-size-fits-all approach.

Employees who are not employed by essential workplaces, or who qualify for the new emergency leaves, may also apply for the corresponding EI benefits now available from the federal Government.

What if an employee has symptoms but does not meet the requirements to self-isolate?

If an employee has the symptoms of COVID-19 (coughing, and/or difficulty breathing), they should not be attending work. If they are febrile, they may have contracted an infectious virus and should not be in the workplace. They should go home and come back to work when the fourteen-day period has elapsed or when a medical professional authorizes them to return to work.

What if an employee does not want to self-isolate?

If an employer has a reasonable basis to believe that an employee should be self-isolating (i.e., meeting one of the public health-identified criteria for self-isolation) management should make careful notes of the basis for that belief and send the employee home. They should direct him or her not to come to work for the duration of the self-isolation fourteen-day period. Employers have a duty to ensure the safety of the workplace and must weigh the balance between employee wishes and workplace safety.

What if an employee wants to social distance and work-from-home?

Given the advice from public health authorities, many employers are utilizing remote work as a means to promote social distancing. Prime Minister Justin Trudeau has advised all Canadians to work from home where possible. From both a public health and occupational safety perspective, working from home is a sound policy to implement , provided it is feasible for your workplace.

Public health authorities recognize, however, that there are a number of workplaces where remote work is not possible. Even in circumstances where an employee is not required to self-isolate or cannot work remotely, all employees should exercise precaution and self-monitor for symptoms of COVID-19. Employers should inform their employees of their duty to abstain from work and to report any symptoms or risk of COVID-19 to their employer during this crisis.

Does an employer have to pay an employee during quarantine?

There is no one-size-fits-all approach to the issue of whether an employer must pay an employee that is self-isolating, and will depend on the particular circumstances. No matter what, employers should be clear with the employee, in writing via email, about whether they will/will not be paid during the quarantine period. The employer's message should be sympathetic, and should confirm in writing exactly what is changing for that employee, and that the steps taken are a temporary necessity.

In addition, the Federal government has initiated new, corresponding measures to support workers affected by COVID-19 and placed in quarantine:

  • the one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined;
  • a new dedicated toll-free phone number is established to support enquiries related to waiving the EI sickness benefits waiting period;
  • employees claiming EI sickness benefits due to quarantine are not required to provide a supporting medical certificate; and
  • employees who cannot complete their claim for EI sickness benefits due to quarantine are permitted to apply later and have their EI claim backdated to cover the period of delay. 

Thank you for reading this - Jason Ward of WARDS LAWYERS PC.

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This WARDS LAWYERS PC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca | www.wardlegal.ca