Workplace disruptions caused by COVID-19 have created unprecedented challenges for both employees and employers. In an attempt to ease these challenges, the federal and provincial governments have introduced a variety of measures, including new job-protected leaves of absence to ensure employees who are unable to work for a COVID-19-related reason don’t lose their jobs as a result. Whether you are a federally or provincially regulated workplace, these new leave entitlements provide some level of job protection in the event an employee is unable to work because of the COVID-19 pandemic.
Is my Workplace Federally or Provincially Regulated?
Most workplaces in Ontario are provincially regulated, which means they are (except in rare circumstances) governed by the provisions of the Employment Standards Act, 2000 (the “ESA”). Only workplaces that fall under the legislative authority of the federal government, such as banking, airports/airlines, inter-provincial transportation (i.e., trucking) and federal crown corporations, are governed by the provisions of the Canada Labour Code (the “CLC”).
For Provincially Regulated Workplaces: The New ‘Infectious Disease Emergencies’ Leave
On March 19, 2020, the provincial government introduced amendments to the ESA, which allow employees to take an unpaid job-protected leave for various reasons related to an infectious disease, including COVID-19. Specifically, an employee can take infectious disease emergency leave if they are unable to perform the duties of their position for any of the following reasons:
- the employee is under medical investigation, treatment or supervision in relation to COVID-19;
- the employee is in quarantine, isolation or is subject to another control measure in relation to COVID-19;
- the employee is asked to remain off work at the direction of their employer out of concern that they may expose others to COVID-19;
- the employee is providing care to a family member related to COVID-19, including as a result of school or daycare closures; or,
- the employee is directly affected by travel restrictions related to COVID-19 and cannot reasonably be expected to travel back to Ontario.
Employees are entitled to remain on unpaid job-protected leave for as long as the above-noted circumstances continue to apply to them. Employers cannot insist upon a medical note to substantiate the employee’s entitlement to the leave, however, they are entitled to evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances.
Following the leave, the employer must reinstate the employee to the position they most recently held, if it still exists, or to a comparable position if it does not. It is important to note, however, that the job protection provided by the ESA does not protect an employee from being laid off or terminated for ANY reason, rather, it provides protection against lay off and/or termination only because the employee took the leave of absence.
For Federally Regulated Workplaces: The New ‘Leave Related to COVID-19’
On March 25, 2020, the federal government passed legislation amending Part III of the CLC to add a new job-protected leave entitled ‘Leave Related to COVID-19’. This new leave entitlement is set to be removed from the CLC on October 1, 2020. Until then, employees that are “unable or unavailable to work for reasons related to COVID-19” are entitled to this leave for up to 16 weeks, or such number of weeks that may be set by regulation.
Any employee who intends to take this leave must give written notice to their employer as soon as possible setting out the reasons for the leave, its intended length and any change in the length of the leave. The employer may also require the employee to provide a written declaration in support of the reasons for the leave and any change in the length of the leave.
Employees have certain rights while on leave, including being informed of every employment, promotion or training opportunity for which they are qualified that arises during the time they are on leave, provided they have requested to be informed of such opportunities in writing. Further, an employer cannot dismiss, suspend, lay off, demote or discipline an employee because the employee intends to take, or has taken, a COVID-19-related leave, nor can the decision to take the leave be considered in any decision to promote or train the employee.
It is important to note, however, that the legislation does allow employers to reassign employees returning from a leave to a different position with different terms and conditions, if the employee is unable to perform their previous work as a result of the absence. Although the legislation allows for such reassignment, depending on the circumstances, it could amount to a constructive dismissal at common law.
Compensation During Leave
Although these leaves are unpaid, most provincially and federally regulated employees who take a leave would be eligible to apply for the newly introduced Canada Emergency Response Benefit and possibly Employment Insurance thereafter.
Disclaimer: As always, this post does not constitute legal advice and we would encourage you to seek professional legal advice from one of our knowledgeable lawyers before making any decisions with respect to your own case.