Bill 186: New COVID-19 Leaves for Ontario Employees

On 19 March 2020, the Ontario government passed the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. This new law provides job protected COVID-19 leaves for Ontario employees directly affected by the coronavirus. It also excuses employees affected by COVID-19 from providing sick notes to access these new leaves.  It does not mandate paid sick days for any Ontario workers. Its provisions are retroactive to 25 January 2020.

WHAT WORKERS ARE COVERED BY BILL 186’S COVID-19 LEAVES?

Most provincially regulated Ontario workers are covered by the new law. 

The following types of workers are entitled to a job protected unpaid leave form work:

CATEGORY 1: Employee cannot work because of a declared emergency and meets at least one of the following criteria:

• Cannot work because of an order under the Emergency Management and Civil Protection Act
• Cannot work because of an order under the Health Protection and Promotion Act
• Cannot work because they need to care or assist a close family member (including in-laws and step-family)

CATEGORY 2: Employee cannot work for one of the following reasons:

• They are being investigated, supervised or treated in relation to the designated infections disease (in this case, that’s COVID-19).
• They are acting in accordance with an order of a Medical Officer of Health or Judge under the Health Protection and Promotion Act to prevent the spread of communicable disease, and can include an order to self-isolate.
• They are in quarantine, isolation or subject to some other control measure related to COVID-19. This can include directions issued to the public by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Canada, the Government of Ontario, a municipal counsel, or Board of Health.
• Their employer directed them to stay home because of a concern that they may expose others to COVID-19 while on the job.
• They are providing COVID-19 related care to a family member, including caring for children due to school or daycare closures.
• They are subject to COVID-19 travel restrictions and cannot reasonably be expected to return to Ontario.

Do I need a doctor’s note to access COVID-19 leaves?

Not necessarily. An employer can require “evidence reasonable in the circumstances, at a time that is reasonable in the circumstances” to prove that they’re entitled to the leave. However, they cannot require that the employee provide a doctor’s note or medical certificate.

How long do the COVID-19 leaves last?

This leave lasts as long as it’s needed or until the declared emergency ends.

In other words, if you’re on a COVID-19 leave because of school closures, your leave is likely to last until the end of the declared emergency or until your childcare needs change, whatever comes sooner. If you’re on a COVID-19 leave because you’re self-isolating for 14 days after travel, you’re likely to have to return after your self-isolation if you remain symptom-free.

Are all Ontario employees entitled to COVID-19 leaves?

No. Even if you otherwise meet all of the criteria set out above, you may not be eligible for a COVID-19 leave. There are always exceptions. For example, lawyers, doctors and other professionals may not be entitled to take leaves if it is professional negligence to do so. And, other emergency orders recently made by Ford give hospitals and long-term care homes the right to call employees back from leaves if it’s reasonably necessary to do so to fight COVID-19.

Federally regulated employees may also qualify for COVID-19 leaves. Our blog post on this topic can be found here.

Does this mean I can’t be fired or laid-off because of COVID-19?

Bill 186 makes it illegal to fire employees because they needed time off related to COVID-19. Nothing in these amendments make legitimate firings or lay-offs illegal. If you’ve committed serious misconduct, you can still be fired for cause. Likewise, if your employer is issuing layoffs for business reasons, these laws don’t necessarily prevent them from doing so. Employees dealing with terminations or temporary lay-offs during the COVID-19 pandemic should seek legal advice as soon as possible.

RESOURCES

You can read a copy of Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 here.

You can read a summary of the changes made by Bill 186 here.