Statutory and Contractual Leaves of Absence during the COVID-19 Pandemic:

March 20, 2020
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Statutory Leaves

Under the Employment Standards Act, 2000 (“ESA”), eligible employees are entitled to a number of unpaid job-protected leaves from work. These are in place to ensure that employees who have to be absent for any of these reasons will not lose their jobs as a result.  The following are some that apply in the COVID-19 pandemic:

Emergency Leave: Declared Emergencies and Infectious Disease Emergencies

On March 17, 2020, the provincial government declared a state of emergency.  This order allows employees who will not be performing their duties because of COVID-19 to take a leave of absence if either one of the following conditions are met:

  1. an order made under section 7.0.2 of the Emergency Management and Civil Protection Act applies to them. This section of the Act allows the government to make various orders, including prohibiting travel and closing businesses, schools, or other establishments. On March 17, 2020, the provincial government ordered that all public events with more than 50 people were prohibited and ordered the closure of indoor recreational programs, public schools, libraries, theatres, regulated childcare centres, and all bars and restaurants (except for takeout).  In turn, employees who cannot perform work as a result of this order could claim they are entitled to an emergency leave;
  2. an order made under the Health Protection and Promotion Act (“HPPA”) applies to them.  This Act allows a medical officer of health to order individuals to take, or refrain from taking, an action.  On March 16, 2020, the Toronto Medical Officer of Health strongly recommended dine-in restaurants, bars, nightclubs, and theatres temporarily close.  She warned that failure to comply with this recommendation would result in orders against establishments in accordance with the HPPA.  If the Toronto Medical Officer makes such an order, the employees who are unable to work as a result could claim entitlement to an emergency leave; or
  3. they are needed to provide care or assistance to any one of the following family members:
    1. the employee’s spouse (which includes a same-sex 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 grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse;
    5. the spouse (which includes a same-sex spouse) of a child of the employee;
    6. the employee’s brother or sister; and
    7. a relative of the employee who is dependent on the employee for care or assistance (“Prescribed Family Member 1”).

    An employee who is unable to perform work because they are needed to provide care or assistance to the above-noted individuals can take an emergency leave.

On March 19, 2020, the provincial government amended the ESA to allow employees in the following circumstances to also avail themselves of the emergency leave:

  1. employees under individual medical investigation, supervision or treatment related to COVID-19;
  2. employees acting in accordance with an order under section 22 or 35 of the As discussed above, section 22 of the HPPA allows a medical officer of health to order individuals to take, or refrain from taking, an action, while section 35 allows a court to order a person to take various actions (e.g. isolate himself, submit himself to a medical examination, etc.);
  3. employees in quarantine, isolation or subject to a control measure (e.g. self-isolation) as a result of information or direction by public health officials about COVID-19;
  4. employees who are directed by their employers to not work due to a concern that COVID-19 could spread in the workplace;
  5. employees providing care or support to the following individuals because of a COVID-19 related matter (including school or daycare closures):
    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; and
    12. a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (“Prescribed Family Member 2”); and
  6. employees affected by travel restrictions related to COVID-19 and cannot reasonably be expected to travel back to Ontario.

This emergency leave is retroactive to January 25, 2020. The leave would end the day the declared emergency ends, or as long as the employee cannot work for the reasons outlined in (a) – (f) above.

The legislation specifically states that an employee will not be required to provide a medical certificate if they intend to take the leave. However, the employer may require evidence “reasonable in the circumstances at a time that is reasonable in the circumstances” (e.g. note from a daycare or airline about a cancelled flight).

Sick Leave

An employee who has been employed by the employer for at least two consecutive weeks is entitled to a leave of absence due to personal illness, injury or medical emergency.  The leave is limited to a total of three days in each calendar year.

Given the current circumstances and the burden placed on the healthcare system, requiring medical evidence that an employee is sick due to COVID-19 is no longer required.

Family Responsibility Leave

An employee who has been employed for at least two consecutive weeks is also entitled to a leave of absence due to the illness, injury, medical emergency, or urgent matter of a Prescribed Family Member 1, listed above.  An “urgent matter” is considered an event that is unplanned or out of the employee’s control and that would have negative consequences. The leave is limited to a total of three days in each calendar year.

Family Medical Leave

An employee is entitled to take up to 28 weeks of leave to care for a Prescribed Family Member 2 on the condition a qualified health practitioner issues a certificate stating the individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks.
The 28 weeks of this leave do not have to be taken consecutively. The employee may apply for Compassionate Care Benefits under the Employment Insurance Act to obtain support income during this time (more on employment insurance below).

Family Caregiver Leave

 Employees are entitled to take up to eight weeks of leave to care for a Prescribed Family Member 2, on the condition that a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.

Critical Illness Leave

An employee who has been employed by their employer for at least six consecutive months is entitled to a leave of absence to provide care or support to a critically ill minor child who is a family member of the employee, on the condition that a qualified health practitioner issues a certificate stating the child is critically ill and requires the care or support of one or more family members.  The certificate must also set out the period during which he or she requires that care.  This leave can last up to 37 weeks.
An employee, who has been employed for at least six consecutive months, could also avail themselves of up to 17 weeks of leave to care for a critically ill adult who is listed as a Prescribed Family Member 2, on the condition a qualified health practitioner issues a certificate stating the individual is critically ill and requires the care or support of one or more family members. The certificate must also set out the period during which he or she requires that care. Though the requirement for individuals to produce medical certificates to prove their entitlement to personal sick leave has been eliminated, it is not clear if the province has removed the obligation for medical certificates for Family Caregiver Leave or Critical Illness Leave.  Given the current circumstances and the strains on the provincial health system, the expectation will likely be that employers should not be requiring such certificates in the near future.
Employees who wish to avail themselves of the above-noted leaves must advise their employers, either orally or in writing, that they will be taking the leave.  Where possible, this notice should be provided in advance, but in situations where that is not feasible, notice should be provided as soon as possible after beginning the leave.  An employee’s failure to advise the employer will not negate the entitlement to take the leave and an employer cannot penalize or reprise against an employee for exercising their right to take these statutory leaves.”

Contractual Leaves

In addition to the statutory leaves listed above, workers may also be entitled to take time off work pursuant to their contracts or employer/insurance policies.  The conditions, length, and payments (or lack thereof) of the leave depends on the terms in the contract or policy.  If an employee is entitled to a contractual leave for circumstances similar to a statutory leave under the ESA, that leave will be counted as one and the same leave (i.e. the employee would not be entitled to the contractual leave plus the statutory leave).
Employers should apply the terms of any contract or policy to individuals who are sick with COVID-19 in the same manner as other sick individuals.  Employers are encouraged to lift any onerous requirements placed on employees surrounding medical certificates during the COVID-19 pandemic.

Conclusion

If you need legal advice about leaves of absences that apply to COVID-19, reach out to a lawyer at Turnpenney Milne LLP. We would be happy to assist you.