On March 17, 2020, the Premier of Ontario declared a state of emergency in Ontario amid the COVID-19 pandemic. This triggered an obligation on employers, under Section 50.1 of the Employment Standards Act, 2000, to provide impacted employees with an unpaid, job-protected leave of absence known as “declared emergency leave”. The following is a summary of the key things employers need to know about this leave.

When is Declared Emergency Leave Available?

For employees to qualify, two factors must arise:

1. There must be a declaration of an emergency in part or all of Ontario pursuant to the Emergency Management and Civil Protection Act. Premier Ford triggered this yesterday; and

2. Employees must be unable to work as a result of one of the following circumstances:

• A Government Order. During a state of emergency, the Lieutenant Governor in Council can make orders that they believe are necessary and essential to mitigate serious harm under section 7.0.2 of the Emergency Management and Civil Protection Act. This power is expansive and includes but is not limited to, shutting down businesses, procuring necessary resources, and requiring collection and disclosure of information. A list of the orders made yesterday can be found here.
• A Public Health Order. Under the Health Protection and Promotion Act, medical officers of health have the power to require persons to take, or refrain from taking any action specified in such orders in respect of a communicable disease.
• A need to provide care or assistance to certain family members. An employee qualifies for emergency leave if they must provide “care or assistance” to:

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 grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
5. The spouse of a child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.

An example of a situation under this would include an employee who is unable to work because they need to stay home with their child because the child’s school or daycare has been temporarily closed as a result of an order.

Who is Entitled to Emergency Leave?

This leave is available to all employees. Unlike other ESA leaves, there is no minimum service requirement.

Does an Employee Have to Notify their Employer in Order to Access the Leave?

Yes. They have to give their employer notice prior to taking the leave, or where that is not possible, as soon as possible after starting the leave.

Can the Employer Ask for Evidence?

Yes. An employer may require an employee to provide evidence that is “reasonable in the circumstances” that he or she is or was entitled to take the leave. Such evidence may include a note from an employee’s daycare provider that the daycare was closed because of a declared emergency.

How Long does Declared Emergency Leave Last?

Generally, declared emergency leave ends on the day that the declared emergency is terminated or disallowed. Subject to some exceptions, an employee’s right to this leave of absence will also end at that time.

Are Employees Entitled to Benefits While on Emergency Leave?

An employee on Emergency Leave has the right to continue participating in the employer’s benefit plans and to require the employer to pay its share of the contributions during the leave.

Is Declared Emergency Leave Retroactive?

If an order is made retroactively pursuant to the Emergency Management and Civil Protection Act, an employee will be deemed to have been on leave beginning the first day the employee stopped performing their duties as a result of the declared emergency. The Employment Standards Act, 2000 prohibits reprisal by an employer against an employee for not performing the duties of their position while on leave.

This update is part of our continuing efforts to keep you informed about the COVID-19. Watch our COVID-19 hub and our McCarthy Tétrault Employer Advisor blog for further updates, including in-depth analysis of emergency legislation in Ontario, federally, and in other jurisdictions. If you need assistance, please reach out to any member of our National Labour & Employment Team whenever you need to.