I think we can all agree that the world is a little bonkers lately – it seems like things are changing and getting more serious by the minute. Between the time I thought I was finished writing and ready to press “publish” Ontario declared a state of emergency.
We are getting lots of questions from employers about what to do in the face of various impacts from COVID-19, as more and more measures come into place and make it harder for us to go about our daily lives and work.
For some, businesses are shutting down and contracts to provide services are being cancelled. This is causing employers to think about how to scale back and how to be fair to their employees while also staying afloat.
On the employee side, many now have unavoidable child care responsibilities as a result of the shutdown of schools and daycares, that are impacting their ability to work – even from home.
Many employers are able to keep going and are implementing work from home where they can, but there are many who cannot work from home and who we need to go out in public. In addition to health care workers, think about those who keep our shelves stocked at the grocery store or the pharmacy. These employees are likely going to be expected to continue working.
We have put together a wide-ranging FAQ for employers with answers to a lot of common questions.
For today, we are going to focus on the announcements by the Ontario government regarding proposed changes to the Employment Standards Act. You can read the Ontario news release here.
Job Protection for Employees Impacted by COVID-19
On March 16, the Ontario government announced that it intends to introduce legislation to provide job-protected leave to employees impacted by COVID-19.
We have not seen the proposed legislation yet and the legislative process has a few steps (which normally take months!), but we anticipate that the legislation will pass and likely as quickly as bureaucratically possible. No one wants to seem unhelpful in the wake of a pandemic!
The legislature is sitting on Thursday and the Premier’s goal is to have everything pass in one day!
Job security or job-protected leave just means that the employer will not be able to terminate an employee if they need to take a leave for one of the COVID-19 related reasons. It does not mean that the employer must continue to pay the employee. A job-protected leave we are probably all familiar with is parental leave. You can’t take away someone’s job because they take a parental leave – but you also don’t have to pay them while they are on that leave.
It’s unclear what the length of the job protection will be and likely a very open question, as no one likely knows how long someone may need to be away from work due to the pandemic.
Who Will the Protections Apply To?
According to the news release, the leave will protect workers from termination in the following situations:
- The employee is under medical investigation, supervision or treatment for COVID-19.
- The employee is acting in accordance with an order under the Health Protection and Promotion Act.
- The employee is in isolation or quarantine.
- The employee is acting in accordance with public health information or direction.
- The employer directs the employee not to work.
- The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
We will be interested to see if the situation of “employer directing the employee not to work” will include employers who are directing employees not to work because they are unable to provide work – they work in a restaurant that is closed, for example – or if this will be limited to employees who are asked not to come in due to symptoms.
No Note Required
The proposed legislation would also make it clear that employees will not be required to provide a medical note to support their right to take a leave. The idea here being the medical system should not be gummed up by employees (who likely should be staying home) seeking doctors’ notes. This effectively means that anyone who asserts their right to take this leave will be able to take it, no questions asked.
Changes Retroactive to January 25, 2020
Should the legislation pass, the amendments to the Employment Standards Act will be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.
Stay tuned for updates on the rapidly evolving legal landscape in the face of the pandemic.