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Lawyers divided over protection provided by new Ontario infectious disease legislation

Monday, March 23, 2020 @ 1:00 PM | By Amanda Jerome

Last Updated: Monday, March 23, 2020 @ 3:40 PM


Labour and employment lawyers in Ontario are divided on whether the recently passed Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 goes far enough to protect workers and provide direction for employers during the COVID-19 pandemic.

According to a government release, the Act, which was passed on March 19, was meant to provide “job-protected leave for employees who are in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives.”

These measures are “retroactive to January 25, 2020, the date the first presumptive COVID-19 case was confirmed in Ontario,” the release explained.

Andrew Monkhouse, Monkhouse Law Employment Lawyers

Andrew Monkhouse, managing partner at Monkhouse Law Employment Lawyers, said the legislation doesn’t go “far enough to make things clear for either workers or employers for what they’re supposed to be doing at this time.”

“It also doesn’t go far enough to protect workers,” he added.

“Part of the issue is that amendments to the Employment Standards Act give workers additional rights, but those rights don’t really line up with the current situation. So, you might have a right not to be terminated, but does that apply to a temporary layoff? Is an employer allowed to temporarily lay you off? The answer for non-unionized workers of Ontario is often ‘no,’ ” he said, noting that it’s difficult to set out what employers or employees should be doing during this time of uncertainty.

“We’re seeing a lot of temporary layoffs. That seems to be a go-to solution for companies who are themselves struggling to try and make ends meet, but it’s difficult for employees who are laid off to know necessarily how that’s supposed to affect them or what’s going to happen,” he explained, adding there’s a disconnect between employment insurance, which is dealt with at the federal level, and employment standards, which are usually handled at the provincial level.

“The distinction between a temporary layoff and a layoff is starting to become very important,” he noted.

Monkhouse said it would be beneficial to see a “positive right for the employees to work from home if they’re able to do so” and “parties should be trying to work together to come up with a good solution.”

Monkhouse also noted that the new leave available under the Act that deals specifically with infectious disease leave is “critical.” He noted that if employees take that leave, they’re potentially not eligible for employment insurance.

“It’s very critical that you work through the different leaves. The [new legislation, to some extent, reiterates things that were already in effect under the [Ontario] Human Rights Code. You would not be able to terminate someone in any event in a lot of the circumstances, so it’s really just reiterating a lot of how the law already existed, but not really providing a lot of clarity on how to move forward,” he added.

The Ontario Federation of Labour (OFL) also doesn’t think the legislation goes far enough to protect workers and vulnerable groups across the province.

“Job-protected leave is no good if workers can’t afford to use it,” said OFL president, Patty Coates, in a statement.

“The government must make it possible for workers to follow the advice of the Chief Medical Officer, and practise social distancing and self-isolation to slow the spread of this virus. Unless all workers have paid emergency leave and other supports so they can take recommended precautions without financial hardship, Ontario’s ability to slow the spread of the COVID-19 pandemic will be impeded,” she added.

Coates noted that “not all workers are covered under this emergency legislation.”

“Front-line workers who are doing the essential work to keep this province healthy and safe need assurances and protections. The government must ensure that all public services are properly funded, accessible and affordable for all workers that are keeping Ontarians healthy and safe during this crisis. Needed supports should be available to all, regardless of their status, immediately and without barriers, so everyone can take care of their health and the safety of their families and communities,” she stressed.

Coates noted that Premier Doug Ford “continues to say that workers should ‘stay home when [they] are sick,’ when he knows very well that it is impossible for workers to follow that directive if they do not have paid leave and other supports.”

“Ontario is only as healthy as the most vulnerable person in our province,” she explained.

Inna Koldorf, Miller Thomson LLP

However, Inna Koldorf, a partner at Miller Thomson LLP, said the legislation provides a “good balance between worker protection and flexibility for employers to make decisions about who should be attending work and giving employers the opportunity to consider the risk of spreading the virus at work.”

“A lot of employers have been struggling with that over the last week or two: who they can send home? Who they can ask to self-isolate? And so, I think this legislation really helps employers in making those decisions and it provides employees with the comfort in knowing that they will not lose their jobs if they need to self-isolate or take care of their kids,” she added.

What struck Koldorf when she first read the legislation is “the fact that there isn’t a time limit on it.”

“As long as the employee is unable to perform the duties because of the virus, or any infectious disease, or as long as schools and daycares are closed, the employee is entitled to the leave,” she said, noting that this puts a strain on employers.

“A lot of companies are slowing down right now, but if things ramp up in a few weeks, it’ll make it very difficult for them to plan ahead if employees are still on leave, if daycares and schools are still closed. So I think the fact that there were no parameters around the length of the leave is really difficult for employers and it’s probably going to cause them to think a little differently and plan differently if and when they ramp up again,” she said, noting that this is also consistent with the other two provinces that have similar legislation: Alberta (where leave is limited to 14 days) and Saskatchewan (where leave is unlimited).

“It’s something that struck me as unusual on the leave front. It’s something employers should pay attention to very closely,” she added.

Koldorf said her firm has been sending updates, sometimes multiple times a day, to clients to keep them informed of changes.

“Every time something new is being introduced we quickly summarize it and send it to our clients, so they’re able to continue to focus on their business,” she said, noting that’s the first thing lawyers should do for all of their clients at this time.

She also encouraged legal professionals to pay attention to both the provincial and federal government websites, checking multiple times a day to make sure they’re up to date on all the changes.

“Things will continue to be this fluid and to change this quickly at least for the next little while,” she said, as the government puts more restrictions in place.

“It’s a trying time for everybody and I do think it’s going to change the employment landscape for a while, maybe not forever, but I think it’s going to be a very slow climb out of this already and it’s only been a couple of weeks since we started implementing these extra measures,” she explained, noting that the legal profession should expect more measures from the government to protect workers.

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