September 14, 2020by Israel Foulon LLP
Since our last E-Bulletin, the Ministry of Labour has released additional guidance concerning the application of the Infectious Disease Emergency Leave (IDEL) provisions at s. 50.1 of the Employment Standards Act, 2000 (ESA).
Back to School and Child Care Obligations
Pursuant to the ESA, an individual is entitled to take a voluntary unpaid leave of absence where they are unable to perform the duties of their position because they are obligated to care for a child, a person with disabilities, or an extended family member for reasons related to COVID-19. The legislative provisions provide that:
Leave of Absence without Pay
S. 50 .1
(1.1) An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position,
(b) because of one or more of the following reasons related to a designated infectious disease:
(v) The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
The Ministry of Labour recently revised the ESA Guide chapter on IDEL. The changes have provided some additional clarity for employers to help determine when their employees are on unpaid, job-protected IDEL. The guide now states that employees may take an unpaid leave of absence where:
[The employee is] taking leave to care for their child whose school or child care was closed because of a designated infectious disease (in this case, COVID-19) or because the employee did not send their child to school or child care out of fear the child would be exposed to COVID-19. [Emphasis added]
Takeaway for Employers
The guide itself is not a legal document, however, it is illustrative of the instructions that Employment Standards Officers have received regarding the application of the infectious disease leave provisions.
This Ministry’s position presents an additional challenge for employers seeking to manage their workforce during the ongoing pandemic. It is likely that healthy employees will refuse to attend the workplace out of fear of sending their child to school and this interpretation of the legislation means that the employee would be entitled to an unpaid job-protected leave and be entitled to reinstatement following their leave of absence.
Please note that the Ministry of Labour’s interpretation is inconsistent with our view of the legislation. It is our view that an employee should have to provide compelling reasons to justify a leave of absence caused by a personal choice not to send their child to school as the Government of Ontario has determined that it is safe for children to attend school. However, any ESA complaints would be determined at first instance by an ESA Officer, who appears to have been instructed to give this leave a wide-ranging interpretation.
We recommend that you seek legal advice if you have questions relating to employees’ requests to take a leave of absence from the workplace for reasons related to COVID-19.
Israel Foulon’s Response to COVID-19 Israel Foulon is assessing the situation as it evolves, and is taking all necessary precautions within its workplace. To slow the spread of COVID-19 and for the health of our team and clients, absent extraordinary circumstances we are working remotely until further notice whenever possible. However, please be aware that our offices remain open and are fully functioning. In the circumstances, we encourage our clients to contact us by phone and email to the extent possible. Voicemail messages left at our office phone numbers are immediately forwarded via email. All messages will be promptly responded to. We remain steadfast in our commitment to our clients and would be more than happy to assist you with concerns regarding COVID-19 or any other employment or labour matters.