All readers will be aware of the mandatory closing of all “non-essential” businesses as of March 24, 2020. It will remain in place for at least 14 days and may then be renewed. A list of businesses that are allowed to open is linked here.
The amendments to the Employment Standards Act (ESA) which were contemplated in the most recent post have now become law. The Ontario government has now passed an amendment to the ESA to protect persons taking sick leave due to COVID-19. It received first, second and third reading and royal assent, all on March 23, 2020. The new statute may require an order passed under the Health Protection and Promotion Act (“HPPA”) in certain situations.
This will allow for a reinstatement claim in the event of termination, again accompanied by the same ticking time clock for lost wages through to the date of reinstatement. Keep in mind that this statute will date back to January 25, 2020, which is very unusual. If you were fired or suffered other discipline such as loss of wages or even a demotion due to a COVID-19 issue, then you will have a claim.
The key features in the new law include protection for an employee who:
- Is under medical investigation, supervision or treatment for COVID-19;
- Is acting in accordance with an order under the HPPA;
- Is in isolation or quarantine with public health information or direction;
- Is away from work because of child care due to the closing of school or daycare facilities;
- The employer directs not to work due to a concern about spreading COVID-19;
- An employee is unable to return to Ontario due to travel restrictions.
No medical note is required. There will be a job protection remedy, that is reinstatement and back pay to the date of the hearing will be allowed.
Although no medical note is required, an employer may request “other evidence that is reasonable in the circumstances”. This would likely refer to non-medical evidence to show the relationship of the relative or the nature of the care which is required.
An employee will be allowed to take “infectious disease emergency leave” to care for the following persons:
- The employee’s spouse;
- A parent, step-parent or foster parent of the employee or the employee’s spouse;
- A child, step-child or foster child of the employee or the employee’s spouse;
- A child who is under the legal guardianship of the employee or the employee’s spouse;
- A brother, step-brother, sister or step-sister of the employee;
- A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
- A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
- A son-in-law or daughter-in-law of the employee or the employee’s spouse;
- An uncle or aunt of the employee or the employee’s spouse;
- A nephew or niece of the employee or the employee’s spouse;
- The spouse of the employee’s grandchild, uncle, aunt, nephew or niece;
- A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met; and
- Any individual prescribed as a family member for the purposes of this section.
Most employees and employers in Ontario are covered by the provisions in this legislation, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers.
All occupational illnesses, including COVID-19, must be reported to the Ministry of Labour, Training and Skills Development within 4 days. Employers must also notify their joint health and safety committees or a health and safety representative and trade union, where appropriate.
Occupational Health & Safety Whistleblower Protection
Ontario has powerful statutes that protect the employment of persons who have brought to the attention of their employer unsafe working conditions, including situations such as that which we are now facing. One such example is the Occupational Health and Safety Act, which applies to all employers in the province.
The framework of the statute prohibits unfair conduct by an employer for the termination or other discipline given to an employee for reporting unsafe working conditions. It need not be a refusal to work.
The statute also creates a reverse onus of proof upon the employer should the employee chose to challenge such a decision of the employer.
Normally when an employee brings a case against a company, he or she must prove the case to achieve a victory by showing evidence to convince the judge beyond a balance of probabilities.
However, in cases brought under this legislation, when an employee, for example, asserts they have been terminated due to compliance with the statute, it is the employer who must prove that this allegation is untrue and that some other motivator caused the termination decision. This is a powerful distinction. There is a presumption made by the statute that the employee’s complaint is valid, one which must be then rebutted by the employer.
The hearing officer has the power to reinstate and order back pay from the date of termination to the date of the hearing. This is a remedy similar to that of the Human Rights Tribunal.
It is thus very different from the usual common law, or judge-made law, claim for wrongful dismissal. In the latter case, the claim is capped by the judge’s assessment of “reasonable notice”.
Get Advice and Know Your Rights
The coronavirus and the dramatic chaos rampant through our society has created very troubling times for all parties to the employment equation. This is the time to get advice and understand your rights and your obligations. For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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