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Overview

Three emergencies were declared in Ontario under the Emergency Management and Civil Protection Act (EMCPA) because of COVID‑19. They were in effect from:

  • March 17, 2020 to July 24, 2020
  • January 12, 2021 to February 9, 2021
  • April 7, 2021 to June 2, 2021

The emergencies applied to the entire province of Ontario. There is no declared emergency in effect at this time.

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.

Employees are not currently entitled to take declared emergency leave. However, during any of the declared emergencies set out above, an employee may have had the right to declared emergency leave if they met the qualifying conditions - see below.

Qualifying for declared emergency leave

Employees were eligible to take declared emergency leave during the COVID‑19 declared emergencies set out above if they were not performing the duties of their position because of the declared emergency and because:

  1. An emergency order made under section 7.0.2 of the Emergency Management and Civil Protection Act (EMCPA) applied to the employee and causes them to not perform the duties of their position.

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

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

    • an emergency order, or
    • the consequences of someone else complying with an order
  1. An order was made under the Health Protection and Promotion Act (HPPA) directed at the employee that prevented 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 employeec
    • 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 was not performing the duties of her position because she was needed to provide care or assistance to her mother who was in self-quarantine due to the outbreak.
  2. During a declared emergency, Keaton was not performing the duties of his position because he needed to stay at home with his child whose school or child care centre was temporarily closed as a result of the outbreak.  

Although employees are not currently entitled to take declared emergency leave under the ESA, an employee who qualified for declared emergency leave when one of the emergencies came to an end may be entitled to a different ESA leave – infectious disease emergency leave. Entitlement to infectious disease emergency leave is not affected by the declared emergency coming to an end.

Notice of leave

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

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

The employee will not have lost the right to take leave if the employee failed to inform the employer.

Evidence

An employer may require an employee who takes declared emergency leave to provide evidence that the employee was 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
  • 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

When an employee takes a leave to provide care or assistance to a relative, 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 was required because of the relative’s illness and that there is a connection between the illness and the declared emergency

Length of leave

There was no set limit on the number of days an eligible employee could 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 have ended 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, was revoked or no longer in effect
  • an order that applied to the employee under the HPPA was revoked or no longer in effect
  • the employee was no longer providing care or assistance to one of the specified individuals

Declared emergency leave did not have to be taken consecutively. Employees could 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 had to deliver urgently needed medication to a brother who is in self-isolation because of COVID‑19), 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.

Employment insurance benefits and other federal supports

Employees who take declared emergency leave may be entitled to either:

  • employment insurance benefits
  • other federal government financial supports

Learn more about the federal government’s financial supports or contact Service Canada’s Employment Insurance Automated Telephone Information Service at Toll-free: 1-800-206-7218.

The right to take time off work under the declared emergency leave provisions of the ESA is not the same as the right to the payment of employment insurance benefits or federal government supports. An employee may be entitled to declared emergency leave whether or not they have applied for or qualified for federal benefits or supports.