May 14, 2003by Israel Foulon LLP
Question: In Ontario , have there been any legislative changes which employers should be aware of when dealing with SARS-related absences?
Answer: The outbreak of SARS has had a tremendous impact on the workplace in Ontario affecting both employers and employees. Some employees have been required to stay home from work due to doctors’ or public health officials’ directions that they quarantine themselves. Others have had to take time off work in order to care for children whose schools were closed or sick family members. In some cases employers have been sending employees home as a cautionary measure in order to protect the workplace from infection. It is important for employers to keep themselves apprised of changes in this area as the situation continues to evolve.
The most recent change which employers should be aware of is the passing of Bill 1, the SARS Assistance and Recovery Strategy Act, 2003. The bill was given all three readings and was passed on April 30, 2003. But it is not yet in effect as it will come into force upon Royal Assent. Part one of the bill, titled “SARS Emergency Leave,” provides for job protection in relation to SARS-related leaves by employees. The protection is also extended to police officers and can apply to other individuals not normally defined as employees if so prescribed by regulation.
The emergency leave provided by this act is in addition to the entitlement to emergency leave days under section 50 of the Employment Standards Act, 2000. During the period beginning March 26, 2003, and ending on a day which shall be proclaimed by the lieutenant-governor, an employee is entitled to a leave of absence without pay for any day or part of a day during which he or she is unable to work because of any one of the following circumstances:
- he is under individual medical investigation, supervision or treatment related to SARS;
- he is acting in accordance with a SARS-related order under the Health Protection and Promotion Act;
- he is in quarantine or isolation in accordance with SARS-related information or directions issued to the public by specified government bodies;
- a direction by his employer due to the employer’s concern that the employee may expose other individuals in the workplace to SARS; or
- he is needed to provide care or assistance to a “prescribed individual” (which is defined in the same manner as under section 50(2) of the ESA, 2000) because of a SARS-related matter concerning that individual.
The employee on a leave under these provisions is required to contact a public health official or physician to receive directions as to whether he should continue to be absent from work for SARS-related reasons and to get written confirmation of such directions within two days. The provisions apply retroactively to anyone who would have been entitled to this leave prior to this act coming into force.
Employers should note they are required to reinstate employees to their prior positions or to a comparable position upon their return from leave. But this does not limit an employer’s right to terminate employment because the employer has been adversely affected by SARS and had to reduce its workforce as a result so that the employee’s position was eliminated. Note that there are reprisals for employers similar to those under the ESA, 2000, for employers who intimidate, dismiss or penalize an employee or threaten to do so because the employee is eligible or becomes eligible to take a leave, or because he intends to take a leave or takes a leave under this act.
Human Resources Development Canada also introduced changes to the Employment Insurance regulations due to SARS as of April 4, 2003. The amended regulations apply to any SARS-related claims for EI sickness benefits submitted on or after March 30, 2003, where the period of quarantine has been imposed or recommended on the claimant by a public health official, or the claimant was asked by the employer, a medical doctor, a nurse or another person in authority to quarantine himself.
The amendment removes the usual two-week waiting period for sickness benefits for SARS-related cases. It also removes the requirement for a medical certificate in SARS-related quarantine cases. This is because many individuals claiming EI in a SARS-related situation will not have a medical certificate since they may have been sent home by their employer or may have worked in an area where they were exposed to SARS and were instructed by an appropriate authority to quarantine themselves. Where the claimant is sick from the beginning or becomes sick before the end of the quarantine period, the claimant will need a medical certificate just like any other EI sickness benefit claimant as he will then be under active medical care.
For more information visit the Ministry of Labour Web site at: www.gov.on.ca/LAB/english/hs/sars/ or the Ministry of Health and Long-Term Care Web site at: www.health.gov.on.ca.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today