Ontario Announces Proposed Job Protection for Workers during COVID-19 Pandemic

By Amanda D. Boyce - Stringer LLP

March 17, 2020

Update:

COVID-19 Update: Premier Doug Ford has Declared a State of Emergency in Ontario

Premier Doug Ford has declared a state of emergency in Ontario as of early morning on March 17, 2020. This announcement comes just a day after Doug Ford’s office directed Ontario’s Minister of Labour, Training and Skills Development to draft legislation that, if passed, would provide significant protection for workers who are away from work due to circumstances surrounding the evolving COVID-19 pandemic. Read about the legislative update here.

The current declaration is made pursuant to section 7.0.1(1) of Ontario’s Emergency Management and Civil Protection Act (“EMCPA”). This allows the Ontario government to issue an order declaring that an emergency requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or property, or where resources normally available to the government are insufficient to address the emergency or are unattainable without the risk of serious delay. Employers should become familiar with how the declaration can impact their workforces.

As part of the order, the Ontario government has required the immediate closure of the following:

- All facilities providing indoor recreational programs;
- All public libraries;
- All private schools (as defined in the Education Act);
- All licensed child care centres;
- All bars and restaurants, except to the extent that such bars or restaurants provide takeout or delivery;
- All theatres and cinemas, including those offering live performances; and
- Concert venues.

Further, all organized public events of over 50 people, including parades, events and communal services within places of worship, are prohibited. The closures and prohibitions are expected to last until March 31, 2020, at which point, the province will re-evaluate whether it will need to extend such order. Grocery stores, pharmacies, manufacturing plants, public transportation, construction sites, office buildings and other important public services will continue to operate.

Employer Considerations

The government’s declaration of an emergency under the EMCPA means that certain employees of affected establishments can take advantage of declared emergency leave under the Employment Standards Act (“ESA”). Under the declared emergency leave provisions, an employee is entitled to a leave of absence without pay if 1) an emergency has been declared under the EMCPA, and 2) the employee is unable to perform the duties of his or her position because:

    the employee is subject to an order under section 7.0.2 the EMCPA;
    the employee is subject to an order under the Health Protection and Promotion Act (“HPPA”); or
    the employee is needed to provide care or assistance to a prescribed family member.

For clarification, an employee is not entitled to declared emergency leave solely because the government has declared an emergency under the EMCPA. The employee must also be unable to work due to one the circumstances listed above.

Section 7.0.2 of the EMCPA provides the government with the authority to make various emergency orders, including orders regulating or prohibiting travel, establishing facilities for the care, welfare, safety and shelter of individuals, and closing establishments as necessary to respond to or alleviate the effects of an emergency. In the current situation, the closure of the establishments listed above may allow affected employees to claim entitlement to declared emergency leave.

As with other statutory leaves of absence, an employer is entitled to request evidence reasonable in the circumstances that an employee is entitled to the leave. Such evidence may include a copy of an order made under the EMCPA or the HPPA. For employees who are providing assistance or care to a prescribed family member affected by the emergency, evidence could include a note from the establishment that is closed because of the declared emergency order.

An employee entitled to declared emergency leave must inform their employer that he or she will be claiming the leave either in advance, or as soon as possible after beginning it. The employee is entitled to the leave for as long as he or she is not performing his or her duties due to the declared emergency.

Stringer LLP will continue to monitor the situation closely, and will provide updates on new developments as they occur.

Previous article:

Ontario Premier Doug Ford’s office announced that it has directed the Minister of Labour, Training and Skills Development to draft legislation that, if passed, would provide significant protection for workers who are away from work due to circumstances surrounding the evolving COVID-19 pandemic.

Employers should expect any proposed bill to be passed into law quite quickly, given the circumstances. Regardless of any amendments that take place before the legislation is passed, it will undoubtedly present challenges for employers struggling to cope with uncertainty for their businesses in the face of an unprecedented global pandemic.

Although few details have been provided thus far, early proposals indicate that the below protections will be made retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. The new legislation will therefore have implications for employers who may already have taken action to deal with their workforces in light of changing circumstances.

The proposed legislation would, if passed, provide job protection for employees unable to work for the following reasons:

-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.

While the announcement does not specify the exact sort of “job protection” to be put in place, presumably employers will be prevented from terminating employees who are absent from work for the above-noted reasons. The duration of allowable absences is not yet clear. The proposal also indicates that employers will not be able to require medical notes from workers who take leave for these reasons.

Early announcements do not make clear whether employees can unilaterally decide to place themselves in isolation, or whether self-isolation must be directed by a public authority of some sort to attract job protection. Further, while employees’ caregiving responsibilities are already protected under the Human Rights Code ground of ‘family status’, the proposed legislation may provide more specific and directed guidance regarding which sorts of caregiving relationships and circumstances are protected in the present circumstances.

It is not yet clear whether the proposed legislation will impact the provisions of the Employment Standards Act which govern temporary layoffs. Pursuant to those provisions, temporary layoffs become terminations of employment after a certain duration in some circumstances. Many businesses will experience slow-downs and economic hardship during the COVID-19 pandemic, and the proposal purports to provide job protection where “the employer directs the employee not to work”.

It seems unlikely that the legislation will provide workers with paid leave entitlement, as the announcement emphasizes that many workers will be eligible for Employment Insurance sickness benefits. The government is also reviewing current access and eligibility to emergency assistance which is available through the Ontario Works program to support individuals who are impacted by the coronavirus and who are not able to meet their basic living expenses.

Stringer LLP will be monitoring the proposed legislation closely, and will provide updates on new developments as they occur.

For more information, please contact:

Amanda D. Boyce at aboyce@stringerllp.com or 416-862-1616
Jeremy D. Schwartz at jschwartz@stringerllp.com or 416-862-7011