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Overview

During a declared emergency, an employee may have the right under the Employment Standards Act, 2000 (ESA) to take declared emergency leave, which is an unpaid, job-protected, leave of absence.

There is no declared emergency in effect at this time. As a result, employees are not currently entitled to take declared emergency leave.

Declared emergency leave is different from infectious disease emergency leave. Entitlement to infectious disease emergency leave does not depend on a declared emergency being in effect.

Qualifying for declared emergency leave

Employees are eligible to take declared emergency leave if they will not be performing the duties of their position because an emergency has been declared under section 7.0.1 of the Emergency Management and Civil Protection Act (EMCPA) and because:

  1. An emergency order made under section 7.0.2 of the EMCPA applies to the employee and causes them to not perform the duties of their position.
     

    In order to meet this condition, the order has to be directed at the employee, either individually, or as part of a group.

    An employee is not eligible for this leave under this qualifying condition if they are indirectly affected by either:

    • an emergency order, or
    • the consequences of someone else complying with an order
  1. An order made under the Health Protection and Promotion Act (HPPA), directed at the employee, prevents them from performing the duties of their position. An order under the HPPA can be made by the provincial government, local medical officers of health or the courts. For example, an order requiring an individual to self-isolate for a period of 14 days.
  1. The employee is needed to provide care or assistance to at least one of the following individuals because of the declared emergency:
    • the employee’s spouse (of the same or opposite sex, whether or married or not)
    • 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 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

Examples

  1. During a declared emergency, Khuper is not performing the duties of her position because she is needed to provide care or assistance to her mother who is in quarantine due to the declared emergency.
  2. During a declared emergency, Keaton is not performing the duties of his position because he needs to stay at home with his child whose school or child care centre is temporarily closed as a result of the declared emergency.

Notice of leave

Generally, before starting a declared emergency leave of absence, an employee must inform their employer in writing or orally that they will be taking the leave.

If the employee cannot notify the employer before starting the leave, the employee must advise the employer of the leave as soon as possible after starting it.

The employee will not lose the right to take leave if the employee fails to inform the employer.

Evidence

An employer may require an employee who takes declared emergency leave to provide evidence that the employee is entitled to the leave. Both the evidence and the time it is required must be reasonable in the circumstances.

Depending on the circumstances, such evidence could include:

  • a note from an employee's child care provider stating that child care was unavailable because of the declared emergency
  • a copy of an order that applies to the employee made under the HPPA
  • a copy of an order that applies to the employee made under section 7.0.2 of the EMCPA

When an employee is caring for a relative who is ill

When an employee takes a leave to provide care or assistance to a relative who is ill, the employer cannot require the employee to give details of the relative’s medical condition or provide a medical note about the relative’s illness.

The employer may only require the employee to disclose:

  • the name of the relative
  • the relative’s relationship to the employee
  • a statement that the absence is required because of the relative’s illness and that there is a connection between the illness and the declared emergency

Length of leave

There is no set limit on the number of days an eligible employee can take as declared emergency leave.

Employees are not entitled to declared emergency leave after the date that the emergency is terminated. The only exception is when an order made under section 7.0.2 of the EMCPA that applies to the employee is extended beyond the duration of the declared emergency.

An employee’s right to declared emergency leave may end earlier than the last day of the declared emergency if:

  • an order that applied to the employee, made under section 7.0.2 of the EMCPA, is revoked or no longer in effect
  • an order that applied to the employee under the HPPA is revoked or no longer in effect
  • the employee is no longer providing care or assistance to one of the specified individuals

Declared emergency leave does not have to be taken consecutively. Employees can take the leave in:

  • part days
  • full days
  • periods of more than one day

Where an employee takes a part day of declared emergency leave (for example, if the employee has to deliver urgently needed supplies to a brother because of the declared emergency), the employer is required to allow the employee to return to work for the remainder of the employee’s shift.  The employee is entitled to be paid the earnings for the portion of the shift the employee worked.

Interaction with other leaves

There are different types of leaves under the ESA including:

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

The purposes of the leaves, their length and eligibility criteria are different.

Rights during leave

The ESA does not require employers to pay an employee while they are on declared emergency leave. However, employees may have a right to be paid under their employment contract or collective agreement. Employees who take declared emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave.

For example, employers are required to reinstate an employee at the end of the leave and are prohibited from threatening, firing or penalizing in any other way an employee who takes or plans on taking a declared emergency leave.

Learn more about the rights for employees taking pregnancy and parental leaves.