As we gradually reopen, what can an employer require an employee to provide before the employee may take the new infectious disease emergency leave in Ontario?
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 physician or nurse as evidence. Employers are not prohibited under the ESA from requiring medical notes in the context of issues such as return-to-work situations or for accommodation purposes.
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
- whether any evidence is available and the cost of the evidence
If it is reasonable in the circumstances, evidence may take many forms, such as a:
- travel documentation showing that the employee had travelled to a country for which quarantine or isolation is being advised
- a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)
- a copy of an order to isolate that was issued to the employee under s. 22 or s. 35 of the Health Protection and Promotion Act
- a note from an employee’s day care provider indicating that the childcare centre was closed because of a designated infectious disease
Employers can only require the evidence at a time that is reasonable in the circumstances. What is considered reasonable in the circumstances will depend on all of the facts of the situation.
For example, if an employee is in isolation or in quarantine, it will not be reasonable to require an employee to provide the evidence during the quarantine or isolation period, if the employee would have to leave home to obtain the evidence.
However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.
