COVID-19 RELATED EMERGENCY LEAVE
On March 19th 2020, the Ontario government amended the Employment Standards Act, 2000 (ESA) to introduce the Infectious Disease Emergency Leave, whereby employees are entitled to unpaid, job-protected leave if they cannot perform their duties because of a COVID-19 declared emergency or an infectious disease emergency.
Employers cannot threaten, terminate, or penalize an employee who takes this type of job-protected leave. The ESA amendment provides job protection for employees unable to work for the following reasons:
- The employee is under medical investigation, supervision or treatment for COVID-19.
- The employee is acting in accordance with an order under the Health Protection and Promotion Act.
- The employee is in isolation or quarantine in accordance with public health information or direction.
- The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.
- The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
- The employee is providing care or support to their family members because of a matter related to COVID-19.
- The employee is prevented from returning to Ontario due to travel restrictions.
Employees are not required to provide a medical note to qualify for the leave, but the employers may request alternate proof for the leave, such as a written declaration from the employee for verification purposes.
These measures are retroactive to January 25, 2020 and will remain in place until 6 weeks after the end of the emergency shutdown (COVID-19 is defeated) or further provisions are added or amended.
Most employees in Ontario are covered by this amendment, whether they are full-time or part-time employees, students, temporary help agency assignment employees, or casual workers. The leave applies to both unionized and non-unionized employees, regardless of the employees’ length of service. It does not, however, apply to federally regulated employees, such as employees working for banks, federal crown companies, airports, and inter-provincial transportation. The Canada Labour Code provides a specific unpaid leave for COVID-19 for up to 24 weeks for federally regulated employees who are unable to work for reasons related to COVID-19. This leave is not retroactive and will be effective until October 1, 2020.
GROUNDS FOR STRESS LEAVE IN ONTARIO
In Ontario, the Employment Standards Act, 2000 (ESA) states that employees are entitled to sick leave for stress and other mental health issues. Employers are not required to pay employees who take a stress leave in Ontario according to the ESA.
Although stress itself does not qualify as a disability under the Human Rights Code, employees may still have to be accommodated if the stress relates to another qualifying ground under the Human Rights Code. The Ontario Human Rights Commission lists the following factors for employers to consider when an employee requests stress leave or accommodation due to stress:
- Is there a disability-related need for accommodation?
- What is the nature of limitations and restrictions?
- Is there another situation requiring accommodation? For example, does the stress relate to pregnancy, care-giving responsibilities or difficulty balancing religious needs with workplace rules?
- How can the employee’s accommodation needs be met?
- What outside supports can the employee also be referred to?
- Is further action needed due to another workplace cause of the stress?
- What workplace conditions may be adding to the stress?
- Has the employee been exposed to discrimination and harassment? If so, how have these been handled?
Employees may be required to get a medical note stating that they are unable to perform their duties at work due to health concerns, but the note does not need to precisely state that the employee is suffering from “stress”.
More information on stress leave in Ontario
STRESS LEAVE DURING COVID-19
Although there has been a gradual return to normal business operations, employees continue to feel uncertain about the public safety and economic climate. Companies need to comply with government mandated restrictions and health standards. The risk of infection still exists, and it may aggravate stress and other mental health impairments for many employees.
At this time, Ontario’s Infectious Disease Emergency Leave does not include stress or mental health concerns as a criterion for taking leave. Employees working in businesses or services that are declared “essential” by the provincial government are required to work unless their employers have approved a leave of absence. Stress related to the possibility of contracting COVID-19 is not a legitimate ground for stress leave, so an employee who is declared “essential” will not be able to take a leave of absence due to stress alone. However, they may qualify for other forms of accommodation per the Ontario Human Rights Code, depending on their circumstances.
Under the Ontario Human Rights Code, employers have a duty to accommodate employees with disabilities and manage employees’ mental health. This could, for example, include flexible work hours, more frequent breaks for employees working on site, or providing time off.
If an employee makes a work-related request for stress leave, the employer needs to determine if the employee is unable to perform their duties due to stress or other mental health issues that are reasonably related to COVID-19 and if so, whether there are any accommodations available for the employee. Each employee’s situation in the context of the pandemic will impact the employer’s decision to define what is ‘reasonable’.
EMPLOYER RESPONSIBILITIES FOR STRESS LEAVE
Employers are generally allowed to ask employees to provide a medical note or certification when employees request a stress leave, but they are not allowed to ask for a medical note when employees ask for a sick leave related to COVID-19 as it may be challenging for employees to obtain one. Employers should exercise caution when assessing their employees’ situations.
Employers are further advised to review any company policies for managing their employees’ mental health and to communicate with the employees in advance that there are mental health support programs available through this time of emergency. Employers should also communicate that if a large number of employees need accommodation, individual assessment can be challenging and there may be more limited options.
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