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Overview

Employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease. This leave is available to all employees who are covered by the ESA.

The only disease for which unpaid infectious disease emergency leave may be taken at this time is COVID‑19. Although the ESA was amended to include unpaid infectious disease emergency leave on March 19, 2020, the leave entitlements for are retroactive to January 25, 2020 and have no end date. An employee is entitled to take this unpaid leave so long as the conditions set out below are met.

Reasons infectious disease emergency leave may be taken

Employees can take infectious disease emergency leave if they will not be performing the duties of their position because of any of the following reasons:

  1. The employee is under individual medical investigation, supervision or treatment related to a designated infectious disease. The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country.

    Examples include:
    • An employee is not performing the duties of their position because they are under the medical supervision of a doctor:
      • due to having contracted COVID‑19
      • because of mental health reasons relating to COVID‑19
    • An employee is not performing the duties of their position because they left work in order to get a COVID‑19 vaccination or are experiencing a side effect from the COVID‑19 vaccination. In both of these situations, the employee is under individual medical treatment (which includes preventative actions, such as vaccinations and recovery from associated side effects) related to COVID‑19.
  1. The employee is following a COVID‑19 related order issued under section 22 or 35 of the Health Promotion and Protection Act.
  2. The employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued to the public (in whole or in part) to one or more people, through any means, including print, electronic or broadcast (for example, television or radio):
    • by a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health
      • a medical officer of health or an associate medical officer of health
      • an employee of a board of health
    • by someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak)
    • by Telehealth Ontario
    • by the Government of Ontario or Canada
    • by a municipal council in Ontario
    • by a board of health

  3. The employee is under a direction given by their employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.

    Examples include where the employer directed an employee to stay at home for a period of time because the employee recently travelled internationally and the employer is concerned they may expose others in the workplace to a designated infectious disease.

  4. The employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:

    • the employee’s spouse (of the same or opposite sex, whether or not married)
    • 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, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
    • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

    Examples include:

    • Providing care for their child whose school or child care was closed because of a designated infectious disease (in this case, COVID‑19) or because the employee did not send their child to school or child care out of fear the child would be exposed to COVID‑19.
    • Providing care to their child who was sick with COVID‑19 or who stayed home because of COVID‑19 protocols at the school or child care (for example, the child was showing signs of illness and the school or child care centre advised the child to isolate and get tested before returning).
      • This also includes where the employee’s child had a symptom that did not automatically require the child to stay away from school or child care, but the employee was concerned the symptom may relate to COVID‑19 and chose to keep their child home as a precautionary measure.
    • Providing care or support to their child who is getting vaccinated against COVID‑19 or is experiencing side effects from the vaccine, even if the child is not under the care of a medical practitioner for those side effects.
    • Providing care to their child because the child’s babysitter is in quarantine, isolation or sick because of COVID‑19.
    • Providing care to a child because the summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of COVID‑19.
    • Providing care to the employee’s 10-year-old brother, who was visiting the employee from another city without his parents, and who was unable to return home because of travel restrictions imposed to prevent the spread of COVID‑19.
    • Providing care or support to an elderly mother who is in self-isolation due to COVID‑19.

    The employee can be providing the care or support in Ontario or in another province, territory or country.

  5. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

    For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

    There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

    What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

    This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employee’s travel back to Ontario is affected.

    This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

  6. The employee was subject to an order that related to COVID‑19 under the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (ROA).

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

    For example, an order that required restaurants to close down applied to owners of restaurants. It did not apply to the employees of restaurants even though they were affected by the closure.

    However, this did apply, for example, to an employee who was subject to a ROA order that prohibited employees who work in a long-term care home from also working for another health service provider.

    For instance, an employee who has two jobs – one at a long-term care home and one at a retirement home – who was not working at one of the homes as a result of this order, was entitled to take unpaid infectious disease emergency leave from the employer that they were temporarily not working for.

    The ROA took effect on July 24, 2020. Certain orders that had previously been emergency orders under the Emergency Management and Civil Protection Act (EMCPA) were continued as orders under the ROA on that date. All orders continued under ROA have now been revoked.

    Note that if an EMCPA order was directed at an employee (either individually or as part of a group) and, as a consequence, the employee was not performing the duties of their position between March 17, 2020 and July 24, 2020, they were entitled to take declared emergency leave or unpaid infectious disease emergency leave.

    During the COVID‑19 period (March 1, 2020 to July 30, 2022), a non-unionized employee whose employer temporarily reduced or eliminated their hours of work for reasons related to COVID‑19 was deemed to be on a job-protected unpaid infectious disease emergency leave. See the “COVID‑19: Temporary changes to ESA rules” chapter for more information.

Length of infectious disease emergency leave

There is no specified limit to the number of days an employee can be on infectious disease emergency leave.

Employees have the right to be away from work on infectious disease emergency leave only for as long as the event that triggered the entitlement to the leave lasts. After the triggering event is over, the employee’s normal obligations to be at work resume.

Infectious disease emergency leave absences do not have to be taken consecutively. Employees can take the leave in part days, full days or periods of more than one day.

When an employee takes a part day of infectious disease emergency leave (for example, to deliver urgently needed medication to a brother who is in isolation because of COVID‑19), the employer must 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 that the employee works.

Interactions with other ESA rules

Interaction with other leaves

In addition to infectious disease emergency leave, 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. Learn more about the different types of leave in their respective chapters in the ESA.

Interaction with vacation rules

Employees earn vacation time under the ESA, by completing a vacation entitlement year (or stub period). Because there is no break in the employment relationship while an employee is on infectious disease emergency leave, the time on leave counts toward the completion of a vacation entitlement year or stub period. 

For example, an employee on infectious disease emergency leave for all or only part of a vacation entitlement year would have earned a full two or three (depending on the employee’s length of employment) weeks of vacation time at the end of the vacation entitlement year. The vacation pay earned during that vacation entitlement year would be a minimum of 4% or 6% (depending on the employee's length of employment) of any wages actually earned during the year.

Where an employee's contract provides that "paid vacation" is earned through active service (for example, 1.5 paid vacation days for each month of service or three weeks paid vacation for each year of service) an employee on leave may not earn either vacation time and/or pay while on leave. However, at the end of the vacation entitlement year or stub period, the employer must ensure the employee receives the greater of what was in fact earned under the contract and the minimum vacation time and vacation pay they would have earned under the ESA,.

Get more information on vacation rules, including examples of how this works.

Interaction with public holiday rules

Under the ESA, employees are not entitled to public holiday entitlements if they fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday. This is referred to as the “last and first rule”.

An employee who is on infectious disease emergency leave when a public holiday occurs will meet the “first and last rule” if they worked their “first and last rule” if they worked their last scheduled day of work before the leave and their first scheduled day of work after the leave.  If the employee failed to work either or both of those days, they will still meet the first and last rule if they had reasonable cause for failing to work on those day(s). 

For example, Bonnie is on infectious disease emergency leave when the Labour Day holiday occurs. If Bonnie worked her last regularly scheduled day of work before her leave started, and her first regularly scheduled day of work after her leave ended (or had reasonable cause for failing to work either or both of those days), she will be entitled to the paid public holiday.

Get more information about the ESAs public holiday rules.

Notice of leave

An employee must generally advise the employer that the employee will be taking infectious disease emergency leave before starting the leave.

If advance notice cannot be provided, the employee must inform the employer as soon as possible after starting the leave.

Notice can be given in writing or orally.

While an employee is required to tell the employer in advance before starting a leave (or, if this is not feasible, as soon as possible after starting the leave), the employee will not lose the right to take the leave if the employee fails to do so.

Proof of entitlement

An employer may require an employee to provide evidence reasonable in the circumstances at a time that is reasonable in the circumstances that the employee is eligible for infectious disease emergency leave. However, employers cannot require an employee to provide a certificate from a physician or nurse as evidence. Employers are not prohibited under the ESA from requiring medical notes in the context of issues such as return-to-work situations or for accommodation purposes.

What is considered reasonable in the circumstances will depend on all the facts of the situation, such as:

  • the duration of the leave
  • whether there is a pattern of absences
  • whether any evidence is available and the cost of the evidence

If it is reasonable in the circumstances, evidence may take many forms, such as:

  • a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)
  • a copy of an order to isolate that was issued to the employee under section 22 or section 35 of the Health Protection and Promotion Act
  • an email from a pharmacy or from a public health department indicating the employee’s appointment date and time to receive a COVID‑19 vaccination

Employers can only require the evidence at a time that is reasonable in the circumstances. What is considered reasonable in the circumstances will depend on all of the facts of the situation.

Examples of “reasonable in the circumstances”

If an employee is in isolation or quarantine

If an employee is in isolation or in quarantine, it will not be reasonable to require an employee to provide the evidence during the quarantine or isolation period if the employee would have to leave home to obtain the evidence.

However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.

Whether an employer can require a positive COVID-19 test

The question may arise as to whether an employer can require an employee who takes infectious disease emergency leave because they believe they have contracted COVID-19 to provide a positive COVID-19 test result as proof of entitlement to the leave.

Whether it is reasonable for the employer to require the employee to provide a positive COVID-19 test result will depend on all of the circumstances.

For example, if the employee had taken a test before starting the leave or during the leave, and had evidence from the test indicating a positive result, it would be reasonable for the employer to require the employee to provide that evidence.

As another example, if an employee is too sick to leave home for a polymerase chain reaction (PCR) test or is not permitted to access a PCR test through the provincial testing system, it would not be reasonable in the circumstances to require the employee to provide the results from a PCR test from a provincial testing location as proof of entitlement to the leave.

Whether it would be reasonable for an employer to require an employee to provide evidence of the results from a private PCR test or from a rapid antigen test as proof of entitlement to the leave would depend on the circumstances, including factors such as the employee’s ability to access the test and its cost.

Rights during leave

Employees who take infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking either of these leaves.

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