Ontario Government Declares State of Emergency

The Government of Ontario declared a province-wide state of emergency in an effort to contain the spread of COVID-19.  This will impact employers and employees. 

The government ordered the closure of all facilities with recreational programs, public libraries, private schools as defined in the Education Act, licensed child care centres, movie and performance theatres, concert venues and bars and restaurants. Bars and restaurants that offer take out or delivery services can remain open for that purpose. 

Employers are recommended to issue a temporary layoff to impacted employees, complete the Record of Employment and indicate the reason as "lack of work due to Emergency Decree and COVID 19". This will allow employees to receive Employment Insurance. 

Additionally, the government advised against all public gatherings of 50 or more people, including parades, events, and communal services within places of worship until at least March 31st. 

The closures are limited, as grocery stores, pharmacies, convenience stores, shopping malls, public transit, manufacturing facilities, construction sites, and office buildings may remain open and in operation at this time. That said, the government has asked all employers in Ontario to facilitate virtual work arrangements (i.e., work from home) where possible. 

Ontario Government Announces Changes to Employment Standards Act 

The Ontario government also announced that it will be introducing emergency legislation that would amend the Employment Standards Act, 2000 (“ESA”) to provide job-protected leave to all employees impacted by COVID-19. Specifically, the proposed amendments would provide job-protected leave to all employees who are unable to work for the following reasons:

  • the employer directs the employee not to work
  • 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
  • the employee is acting in accordance with public health information or direction
  • the employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure

Currently, employees can be required to provide a doctor’s note or a medical certificate to take job-protected leave under the ESA. The proposed legislation is expected to waive the requirement for doctors’ notes or medical certificates. If passed, employers may not request, and employees are not required to provide doctors’ notes or medical certificates to take job-protected leave relating to COVID-19. In the circumstances Employers should not be requesting them now unless someone was off work due to contracting the virus and now wishes to return.

While the Ontario government has eased the requirements for job-protected leave in light of COVID-19, the government has not stated the length of the job-protected leave or whether it would be a paid leave. It appears that the job-protected leave would be unpaid as the Ontario government noted that qualifying employees would have access to Employment Insurance.

While the legislation has not yet passed, it is recommended that Employers should conduct themselves as if it has. 

The proposed legislation will be heard and potentially passed during the emergency sitting of the Ontario legislature on Thursday, March 19, 2020. If the legislature passes the proposed legislation, the new or revised provisions and protections will be retroactive to January 25, 2020—the date Ontario confirmed its first presumptive case of COVID-19. 

We are closely monitoring the situation and will continue to provide updates as they become available. 

Please contact your Baker McKenzie attorneys below for more information.

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