The province of Ontario is in an unprecedented situation. As of March 17, 2020, Premier Doug Ford enacted a declaration of emergency pursuant to section 7.0.1 (1) the Emergency Management and Civil Protection Act, RSO 1990 c E.9 ("EMCPA"). For the first time since its enactment in 2006, some employees may now be able to take a Declared Emergency Leave (“DEL”) pursuant to section 50.1 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

DEL is an unpaid, job-protected leave of absence that lasts until the declared emergency is terminated or disallowed. Such a leave is available where (a) an emergency has been declared pursuant to section 7.0.1 of the EMPCA that directly affects an employee’s ability to perform their job, and (b) one or more specified situations applies to the employee. These situations are as follows:

Where an order is made under section 7.0.2 of the EMCPA that applies to the employee. For example, where an employee is unable to perform their job due to an ordered closure of their workplace, or where an employee cannot commute to their workplace because such travel is prohibited due to the declared emergency and the employee is unable to work from home.

Where an order under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 applies to the employee. For example, where a medical officer of health orders individuals to refrain from taking specified action related to a communicable disease and such action is necessary for the performance of the employee’s job.

As a result of the declared emergency, the employee must provide care or assistance to certain specified individuals, such as immediate family members. For example, where there are day care closures and the employee must stay home to care for their child, or where an employee’s disabled grandparent is quarantined in their home and requires assistance.

Lastly, DEL may be taken for “such other reasons as may be prescribed”. There are currently no prescribed reasons.

Employees who require this leave must notify their employer in advance, although there is no specified timeline in the ESA. If this is not possible, the employee must inform their employer as soon as reasonably possible after commencing the leave. Employers may require employees to provide evidence of the leave that is reasonable in the circumstances, and at a time that is also reasonable in the circumstances.

But what if an employee eligible for DEL does not take it? Can an employer force an employee to take the leave? Like other leave entitlements, DEL is an employee right, so it is unlikely an employer can demand that an employee take such a leave. An employer who wishes to temporarily remove a worker from the workplace can do so by other means, such as a temporary lay-off. Temporary lay-offs can last for no more than 13 weeks in a 20-week period with no notice and no payments to the employee, or they can last for more than 13 weeks but less than 35 weeks in a 52-week period with no notice but some specified payments to the employee, such as benefits continuation. If the employee has not been recalled after the temporary layoff period, they are deemed to be terminated.

Be careful – temporary layoffs look different depending on the workplace and the employee. A temporary layoff can become a constructive dismissal if the employer and employee do not have an agreement in place allowing the employer to temporarily layoff the employee. Layoffs also look different in unionized workplaces where the collective agreement may provide its own scheme. The number of employees laid off at a time also affects an employer’s obligations; there are significant implications if 50 or more employees are laid off and subsequently deemed to be retroactively terminated in any four-week period starting from the original layoff date. It is important that employers know their rights and obligations to avoid liability.

Employees on temporary layoff can receive Employment Insurance (“EI”) benefits. As a responsible employer, you should issue Records of Employment to laid off employees as soon as possible to enable them to access these benefits. Recent legislative changes in the past week mean that some EI waiting periods and the requirement for a medical note have been waived. Employers should urge employees to apply for EI benefits as soon as possible.

Not only are we dealing with a novel coronavirus; we are dealing with a novel employment law landscape. Employers must tread carefully. Tough decisions will have to be made and it is important for everyone to know their rights and obligations.

We are here to help. Contact us today with your novel questions!