Leaves, Layoffs and Declared Emergencies: The Latest COVID-19 Updates for Employers

The COVID-19 pandemic is affecting people and businesses around the world. With the situation changing rapidly, here are some updates that Ontario employers (and employees) need to know. I also recommend you read Asha’s blog post from last week which has lots of great information.

COVID-19 Job Protected Leave Passed

On Thursday, March 19, the Ontario government passed its promised job protected leave for employees who need to be away from work due to COVID-19. The leave is unpaid, but employees can access EI. Among other things, employees can take the leave if:

• they are under medical investigation, supervision or treatment for COVID-19
• they need to self-isolate or quarantine
• the employer directs the employee not to work to prevent the spread of COVID-19 in the workplace
• they need to care for children due to COVID-19 related school or daycare closures.
• the employee was travelling and cannot return to Ontario due to travel restrictions

The law applies retroactively and protects the jobs of employees who have been affected by these circumstances since January 25, 2019.

Employers cannot require medical notes for this leave. However, employers can require other reasonable evidence to substantiate the leave, such as proof that a daycare has closed or a flight back to Ontario was cancelled. More details can be found in this press release.

Declared Emergency Leave Already Exists

Since the Ontario government has declared a state of emergency, employees may also be eligible for Emergency Leave for Declared Emergencies under the Employment Standards Act. This is an unpaid, job-protected leave is separate from the new leave discussed above.

Declared emergency leave is available to employees who need to be away from their jobs due to an emergency order issued by the government, or because they need to care for close family members as a result of the emergency. The leave can extend for as long as the province’s declaration of a state of emergency remains in place.

Employers can request documentation to substantiate the need for declared emergency leave.

Temporary Layoffs

One of the most frequent questions I am asked is whether employers can temporarily lay off employees because of the economic impacts of COVID-19. The answer is complex. The ESA allows for temporary layoffs of up to 13 weeks, and longer ones if the employee continues to be paid substantial amounts or to have benefits or pensions continued. At common law, however, a temporary layoff can be a constructive dismissal.

In the employment contracts that Bernardi drafts, we reserve the employer’s right to impose temporary layoffs. So if you’re an employer client using one of our templates, you may be protected, but please seek legal advice to review your employees’ specific contracts.

If your employees haven’t signed contracts that permit temporary layoffs, then there is a risk a layoff could be a constructive dismissal. Whether or not it is a constructive dismissal depends on a number of factors, so we recommend you seek legal advice. Certainly, continuing to pay employees to the extent feasible, and clearly specifying the length of the layoff (subject to change for unexpected circumstances), will reduce your risk. I also expect the risk to be reduced because most employees will have no real incentive to quit and claim constructive dismissal in these circumstances. Most will be better off collecting EI and then returning to work after the layoff.

This is a rapidly evolving situation, and we will continue to update you with new information that becomes available.