Changes to ESA rules

Paid Infectious Disease Emergency Leave extended to March 31, 2023

The Employment Standards Act, 2000 (ESA) was amended on April 29, 2021 to require employers to provide eligible employees with up to three days of paid infectious disease emergency leave for certain reasons related to COVID-19. The leave is retroactive to April 19, 2021. Eligible employers can apply to be reimbursed for these payments through the Workplace Safety and Insurance Board within 120 days of the date the employer paid the employee, or by July 29, 2023, whichever is earlier. Paid infectious disease emergency leave was set to end July 31, 2022. It will now continue until March 31, 2023.

Temporary ESA rules no longer in effect

In response to the COVID‑19 pandemic, the Ontario government made a regulation that temporarily changed certain Employment Standards Act (ESA) rules during the period. The temporary rules ended on July 30, 2022. Learn more.

This means that the COVID‑19 period ended on July 30, 2022, and non-unionized employees are no longer deemed to be on infectious disease emergency leave by the regulation made by the government. However, if certain conditions are met, unionized and non-unionized employees may continue to be eligible for unpaid and where applicable, paid-infectious disease emergency leave if they are not performing the duties of their position for certain reasons related to COVID‑19. Paid infectious disease emergency leave is available until March 31, 2023. We are in the process of updating this chapter with more detailed information. Please continue to check this guide for more information in the coming days.

Overview

The ESA provides for two infectious disease emergency leaves relating to COVID‑19. One leave is unpaid and one leave is paid.

Paid infectious disease emergency leave

Employees may be eligible for up to three days of paid infectious disease emergency leave until March 31, 2023.

Learn about:

Unpaid infectious disease emergency leave

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

Learn about:

Unpaid infectious disease emergency leave

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.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking an infectious disease emergency leave.

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 an employee may take unpaid infectious disease emergency leave

Employees can take unpaid 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:
    • 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
    • to the public (in whole or in part)
    • to one or more people, and
    • through any means, including print, electronic or broadcast (for example, television or radio)
  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 is subject to an order that relates 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 be directed at the employee, either individually, or as part of a group.

    For example, an order that requires restaurants to close down applies to owners of restaurants. It does not apply to the employees of restaurants even though they are affected by the closure.

    However, this does apply, for example, to an employee who is subject to a ROA order that prohibits 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 is not working at one of the homes as a result of this order, is entitled to take unpaid infectious disease emergency leave from the employer that they are 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.

    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 has temporarily reduced or eliminated their hours of work for reasons related to COVID‑19 is 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.

Employee deemed to be on unpaid infectious disease emergency leave

There is a regulation under the ESA that sets out the circumstances in which an employee is “deemed” (or considered to be) on unpaid infectious disease emergency leave, as opposed to taking infectious disease emergency leave. Only a non-unionized employee can be deemed to be on unpaid infectious disease emergency leave.

Subject to a few exceptions, during the COVID‑19 period (which is from March 1, 2020 to July 30, 2022), a non-unionized employee is deemed to be on unpaid infectious disease emergency leave any time the employee is not performing their duties because their employer has temporarily reduced or temporarily eliminated their hours of work for reasons related to COVID‑19.

Even though an employee is deemed to be on infectious disease emergency leave, the employee may still elect to take an unpaid infectious disease emergency leave if the employee meets the qualifying conditions for taking the leave.

Most of the same rules that apply to an employee who takes paid or unpaid infectious disease emergency leave also apply to employees who are deemed to be on infectious disease emergency leave. Learn more about “deemed” infectious disease emergency leave.

An employee who is deemed to be on unpaid infectious disease emergency leave may qualify for and take any other leave under the ESA.

Absences before March 19, 2020

Although the ESA was amended to provide an entitlement to unpaid infectious disease emergency leave for COVID‑19 on March 19, 2020, the leave entitlements are retroactive to January 25, 2020.

This means that an employee could retroactively designate absences from work between January 25, 2020 and March 18, 2020 as unpaid infectious disease emergency leave if the reason for the absence met the criteria for the leave.

All of the rights that are associated with infectious disease emergency leave (for example, the right to be reinstated at the end of a leave and protection against being penalized for having taken the leave) apply to absences from January 25, 2020 onward.

Employees who were fired on or after January 25, 2020

If an employee was fired on or after January 25, 2020 because the employee was absent from work for a reason that meets the criteria for unpaid infectious disease emergency leave, the employer was required to reinstate the employee to the position the employee most recently held with the employer if it still existed (or to a comparable position if it did not) as of March 19, 2020.

If the employer did not reinstate the employee as of March 19, the employer could be ordered by an employment standards officer to reinstate the employee and to pay compensation to the employee.

The requirement to reinstate does not apply if the employment of the employee was ended solely for reasons unrelated to the leave.

Other ESA leave entitlements used before March 19, 2020

An employee may have used other ESA leave entitlements for absences before March 19, 2020. The employee does not get those leave credits reinstated. For example, in accordance with information related to COVID‑19 from Telehealth Ontario, an employee self-isolated on March 16, 17 and 18, 2020. The employee used three days of unpaid ESA sick leave for that time. Those three days are not credited back to the employee.

Length of unpaid infectious disease emergency leave

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

Employees have the right to be away from work on unpaid 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.

Unpaid 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 unpaid 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.

The ESA was amended on April 29, 2021 to require employers to provide eligible employees with up to three days of paid infectious disease emergency leave for certain reasons related to COVID‑19. Paid infectious disease emergency leave is retroactive to April 19, 2021 and continues until March 31, 2023.

Although paid infectious disease emergency leave has been extended into 2023, employees are not entitled to additional days specific to 2023. Employees are entitled to up to three days total during the period in which paid infectious disease emergency leave is available.

Eligible employers can apply to the Workplace Safety and Insurance Board (WSIB) to be reimbursed for these payments.

This leave is available to all employees who are covered by the ESA and meet the eligibility criteria.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking a paid infectious disease emergency leave.

Eligibility for paid infectious disease emergency leave

To be eligible for paid infectious disease emergency leave, an employee:

If an employee’s employment contract (including a collective agreement) provides a greater right or benefit than the paid infectious disease emergency leave standard under the ESA, then the terms of the contract apply instead of the standard in the ESA.

Reasons for taking the leave

An employee is eligible for the leave if the employee 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 or
      • 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.
  2. The employee is following a COVID‑19 related order issued under section 22 or 35 of the Health Promotion and Protection Act.
  3. 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, and 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
      • 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
  4. 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.
  5. The employee is providing care or support to a specified individual (see the list of specified individuals below) because the individual is:
    • under individual medical investigation, supervision or treatment related to the designated infectious disease (this includes medical investigation, supervision or treatment of physical or mental health issues related to the designated infectious disease), or
    • 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) or to one or more people, and 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

List of specified individuals:

  • 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 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.  (Note that individual medical treatment includes receiving a vaccine for COVID‑19 and recovery from side effects).
  • Providing care or support to an elderly father who is sick with COVID‑19.

Employees who have certain rights to paid leave under their employment contract (which includes a collective agreement) may not be eligible for paid infectious disease emergency leave or may be entitled to fewer than three days of paid leave under the ESA.

Where, on April 19, 2021, an employee is entitled to a paid leave under their employment contract for one or more of the same reasons that paid infectious disease emergency leave can be taken under the ESA, the number of paid days under the contract may reduce the number of days of paid infectious disease emergency leave the employee is eligible to take under the ESA.

This only applies if both:

  • the amount of pay under the employment contract is at least as much as the employee would be entitled to receive under the ESA’s paid infectious disease emergency leave formula; and
  • the employee’s employment contract did not contain conditions for taking the leave that are more restrictive than what is set out in the ESA for taking paid infectious disease emergency leave

In order for an employee’s three days of ESA paid leave to be reduced, all four of the following criteria must have been met on April 19, 2021:

1. Some overlap of reasons for taking leave under the employment contract with reasons for taking paid infectious disease emergency leave under the ESA

The employee’s employment contract provides the employee with paid leave for one or more of the same reasons that paid infectious disease emergency leave can be taken under the ESA.

Examples where a paid leave entitlement under an employment contract overlaps with one or more of the same reasons as paid infectious disease emergency leave under the ESA include:
  • An employee has an entitlement to paid sick days under their employment contract. If, for example, the paid leave under the contract could be taken for contracting COVID‑19 (one of the reasons for which an employee can take paid infectious disease emergency leave), this would be a paid leave for one of the same reasons that paid infectious disease emergency leave can be taken under the ESA.
  • An employee has paid “floater days” under their employment contract that can be taken for any reason. This would be a paid leave for one of the same reasons for which an employee can take paid infectious disease emergency leave (since the floater days can be taken for any of the same reasons an employee could take paid infectious disease emergency leave).
  • An employee has an entitlement to paid “family days” under their employment contract. If, for example, the “family days” under the contract could be taken in order to provide care and support to a relative who contracts COVID‑19 (one of the reasons for which an employee can take paid infectious disease emergency leave), this would be a paid leave for one of the same reasons that paid infectious disease emergency leave can be taken under the ESA.
2. Employee has paid leave entitlements under their employment contract remaining on April 19, 2021

On April 19, 2021, the employee had paid leave that meets criterion 1 above available to them. In other words, on April 19, 2021, the employee had not already taken all of the paid leave they had available under their contract that was available to be taken by the employee for one or more of the same reasons that paid infectious disease emergency leave can be taken under the ESA.

Example of an employee having paid leave available to them on April 19, 2021:

  • An employee’s employment contract provides two paid sick days and one “floater day” that meet criterion 1 above. The employee took the two paid sick days in January 2021 and had no more paid sick days available on April 19, 2021. The employee had not used the “floater” day by April 19, 2021 and so that day remained available to the employee. In this example, the employee has one day of paid leave that meets criterion 1 available to them on April 19, 2021.
3. Paid leave under employment contract is at least as much as pay for paid infectious disease emergency leave under ESA

The employee’s employment contract provides pay for the leave that is at least as much pay as the employee would be entitled to receive under the paid infectious disease emergency leave formula under the ESA (learn about calculating the infectious disease emergency leave pay).

Example of when an employee’s entitlement to paid leave under their employment contract is at least as much pay as paid infectious disease emergency leave under the ESA.

If the employee has paid sick days under the employment contract that pay the employee’s full wages while the employee is on the leave, this criterion would be met. However, if, for example, the employee’s sick days under the contract of employment were paid at 75% of the employee’s wages, depending on the length of the employee’s leave and the employee’s wage rate, this criterion may ultimately not be met.

4. No extra conditions for taking paid leave under the employment contract

The employee’s employment contract incorporates all of the ESAs general provisions concerning leaves (such as the right to continue to participate in benefit plans during the leave and the anti-reprisal protection), and did not contain conditions for taking the leave that are more restrictive than what is set out in the ESA for taking paid infectious disease emergency leave.

Examples of when there are extra conditions for taking paid leave under the employment contract include:
  • Under the ESA, an employer cannot require an employee to provide a note from a doctor as evidence of the employee’s entitlement to paid infectious disease emergency leave. If the contract requires the employee to provide their employer with a doctor’s note in order for the employee to take the paid leave under the contract of employment, this criterion would not be met.
  • Under the ESA, a qualified employee can take paid infectious disease emergency leave at any time, including part-way through a day. If getting paid leave under the contract is conditional on the employee providing advance notice to and/or approval from the employer, this criterion would not be met.
Where all four criteria are met

If all four of the above criteria are met, the employee’s three-day entitlement to paid infectious disease emergency leave under the ESA is reduced by the amount of leave available to the employee under their employment contract.

Below are some examples of how this reduction works:
Example 1: An employee is entitled to paid sick leave under their employment contract, but the employee used up all of the leave prior to April 19, 2021

Denise is entitled to ten fully paid sick days each calendar year under her employment contract. These are the only days of paid leave available to her under her employment contract. There are no conditions under her employment contract that are more restrictive than those in the ESA. Denise had a back injury in February and used all ten of her paid sick days.

Denise had no paid leave available to her under her employment contract on April 19, 2021. She is therefore entitled to three days of paid infectious disease emergency leave.

Examples 2, 3 and 4: An employee is entitled to paid leave under their employment contract and has not taken all of that leave prior to April 19, 2021

Example 2: Anthony is entitled to five fully paid sick days of leave each calendar year under his employment contract. This is the only paid leave available under his employment contract. There are no conditions under his employment contract that are more restrictive than those in the ESA. He took three of the five paid sick days in January 2021. On April 19, 2021, Anthony had two paid leave days remaining under his contract. Anthony is therefore entitled to one (3 – 2 = 1) paid infectious disease emergency leave day under the ESA. This is because on April 19, 2021, Anthony had two paid leave days available under his contract that could be taken for one or more of the reasons for which paid infectious disease emergency leave can be taken, which meet the minimum pay requirements of paid infectious disease emergency leave.

Example 3: Quim is entitled to five fully paid days of sick leave under his employment contract each calendar year. This is the only paid leave available under his employment contract. There are no conditions under his employment contract that are more restrictive than those in the ESA. Quim took two of the five days in January 2021. On April 19, 2021, Quim had three paid days remaining under the contract.

Quim is therefore entitled to zero (3 – 3 = 0) paid infectious disease emergency leave days under the ESA. This is because on April 19, 2021, Quim had three employer-paid days of leave available under his contract that could be taken for one or more of the reasons for which paid infectious disease emergency leave can be taken and which meet the minimum pay requirements of paid infectious disease emergency leave.

Example 4: Alexander was entitled to four hours of paid leave, under his employment contract, to receive a COVID‑19 vaccine. This is the only paid leave available under his employment contract. There are no conditions under his employment contract that are more restrictive than those in the ESA. Alexander did not use the leave before April 19, 2021. On April 19, 2021, Alexander had four hours of leave remaining under the contract.

Alexander is entitled to three days minus four hours of paid infectious disease emergency leave under the ESA. This is because on April 19, 2021, he had four hours of paid leave available under his contract that meet the minimum pay requirements for paid infectious disease emergency leave and could be taken for one or more of the reasons paid infectious disease emergency leave can be taken under the ESA.

Example 5: An employee is hired after April 19, 2021

Kristy is hired on May 1, 2021 and has five fully paid family responsibility days under her employment contract. This is the only paid leave available under her employment contract. There are no conditions under her employment contract that are more restrictive than those in the ESA. Given that she did not have any paid leave under her employment contract on April 19, 2021 (since she was not employed by the employer at that time), she is entitled to three days of paid infectious disease emergency leave under the ESA.

Example 6: An employee’s entitlement to paid leave under their employment contract “refreshes” after April 19, 2021

Nicholos is entitled to five fully paid sick leave days each year under his employment contract. This is the only paid leave available under his employment contract. There are no conditions under his employment contract that are more restrictive than those in the ESA. These paid sick days are renewed every year on Nicholos’s employment anniversary date, which is May 1. On April 19, 2021 Nicholos had used up all his paid sick days under his employment contract. As a result, he is entitled to three paid infectious disease emergency leave under the ESA. This is the case even though his paid sick leave days under his employment contract will be renewed on May 1, 2021.

Differences from how contractual entitlements are treated under other leaves

Note that this scheme is different from the statutory scheme that applies in the sick leave, family responsibility leave, and bereavement leave contexts in the ESA. In the context of those leaves, the question of whether a leave under the employment contract also counts as leave under the ESA is answered at the time the employee takes the leave, and happens only if both the ESA and employment contract provide a right to leave for the reason the employee was absent.

The approach is very different in the context of paid infectious disease emergency leave. Rather than providing all employees with three paid infectious disease emergency leave days against which contractual paid days may later be counted, in the paid infectious disease emergency leave context, the employee’s leave entitlements under the employment contract on April 19, 2021 may reduce the amount of paid infectious disease emergency leave available to the employee. The analysis involves a comparison of the reasons for the leave entitlements that are available to the employee under the contract with the reasons for paid infectious disease emergency leave available under the ESA.

It is important to note that the reasons for leave under the contract and the reasons for leave under the ESA do not have to match perfectly in order for the contract to reduce the employee’s three-day ESA entitlement. If a reason for leave under the contract is also one of the reasons the paid leave is available under the ESA, the three-day entitlement under the ESA is reduced (assuming the paid leave under the employment contract meets all the other relevant criteria).

This means that there can be situations where an employee will not have the right to paid leave under either the contract or the ESA when the employee is, after April 19, 2021, away for a reason that the ESA sets out as a qualifying reason for a paid infectious disease leave entitlement. In this situation, the employee would have a right to unpaid infectious disease emergency leave under the ESA.

For example, the only entitlement to paid leave under Akhseh’s employment contract is three fully paid family days. These days could be used to care for a specified individual who contracted COVID‑19. These are therefore contractual days that could be used for one or more of the reasons for which paid infectious disease emergency leave can be taken under the ESA.

As a result, if Akhseh has three of these days available under his contract on April 19, 2021 and there are no conditions under his employment contract that are more restrictive than those in the ESA, then he would not be entitled to any days of paid infectious disease emergency leave under the ESA. If Akhseh wanted paid time off to get tested for COVID‑19 or to get vaccinated against COVID‑19, he would not have a right to paid leave under his contract or under the ESA but would have an entitlement to take that time as unpaid infectious disease emergency leave.

It is the employee’s decision as to whether to claim paid infectious disease emergency leave

A question may arise in the situation where an employee has entitlements to both contractual leave and paid infectious disease emergency leave and the employee is absent for a reason that entitles the employee to the leave under both the contract and the ESA. The question is which entitlement (the contractual leave entitlement or the statutory leave entitlement) must be taken first. (This may be relevant for several reasons, including for purposes of tracking the employee’s remaining contractual and statutory entitlements and because employers are eligible to be reimbursed only for payments made for statutory paid infectious disease emergency leave).

The ESA does not set out which entitlement must be taken first in this situation. It is the policy of the Employment Standards program that employees decide whether or not to claim a statutory paid infectious disease emergency leave when the employee is absent for a reason that qualifies for that leave.

Calculating infectious disease emergency leave pay for eligible employees

An employee who qualifies for paid infectious disease emergency leave is generally entitled to be paid what they would have earned had they worked and not taken the leave, up to a maximum of $200 per day. If the employee is paid fully or partly by a performance-related method (like commission only, commission plus salary, commission plus hourly rate, or piece work) then they must be paid their hourly rate or the applicable minimum wage, whichever is more, for the work time they missed because they were on paid infectious disease emergency leave.

If the employee missed part of a day to take the leave, the employee would be entitled to be paid any wages they actually earned during the time they were at work (in addition to the infectious disease emergency leave pay for the part of the day they took as leave).

Infectious disease emergency leave pay is considered wages under the ESA. This means employers must generally pay employees’ infectious disease emergency leave pay no later than the pay day for the pay period in which the paid infectious disease emergency leave is taken. Vacation pay is payable on infectious disease emergency leave pay. (Note the only exception to the requirement for the employer to pay the infectious disease emergency leave pay to the employee by the pay day for the pay period in which the leave is taken is where the employee elected, in writing, by May 12, 2021 to retroactively take the paid leave for one or more days between April 19, 2021 and April 28, 2021. In that situation, the employer must pay the employee by the pay day for the pay period in which the employee provided the written election.)

Determining the amount of time taken for the leave

The amount of paid infectious disease emergency leave taken on a single day is calculated by deducting the number of hours actually worked, if any, from the total number of hours in the work day.

Example

Dena is entitled to paid infectious disease emergency leave. Dena usually works eight hours a day. If she takes two hours off work as infectious disease emergency leave to be vaccinated against COVID‑19, she will be entitled to two hours paid infectious disease emergency leave, and six hours of regular earnings for the time she spent at work.

An employee may be required to report to work at a particular time, but does not have a shift or work period of a specified length. In that case, the employer must make a reasonable estimate of how long the employee would have worked on that day. For example, it could be reasonable for an employer to take an average of the number of hours worked by all the employees in the same position as the employee who took leave. If another employee was called in to replace the employee on the day, it could be reasonable to refer to the length of that employee's shift.

Formula for infectious disease emergency leave pay

There are different ways to calculate an employee’s pay for infectious disease emergency leave depending on how the employee is paid, and whether the employee took a full day or part of a day of leave.

Employees who are paid by an hourly rate

The employee’s pay entitlement is the hourly rate x the number of hours the employee did not work because they took the leave.

Example 1:

Nicolas is entitled to paid infectious disease emergency leave. Nicolas is paid $16 per hour and missed a full day of work due to COVID‑19 testing and isolation. He was scheduled to work nine hours. His infectious disease emergency leave pay is $16 x 9 = $144. If this calculation resulted in an amount greater than $200, Nicolas would only be entitled to receive $200 and not the calculated amount.

Example 2:

Joshua is entitled to paid infectious disease emergency leave. Joshua is paid $17.50 per hour and missed the first 2.5 hours of his shift to be vaccinated against COVID‑19. He normally works 8 hours in a day.

His infectious disease emergency leave pay is $17.50 x 2.5 = $43.75. (In addition to his infectious disease emergency leave pay, he is also entitled to his regular earnings for the hours he worked during the rest of the day). If Joshua’s infectious disease emergency leave pay had resulted in an amount greater than $200, Joshua would only be entitled to receive $200 and not the calculated amount. This $200 maximum applies only to the infectious disease emergency leave pay, not to his total wages for the day.

Employees who are paid a salary

For an employee paid by salary, paying infectious disease emergency leave pay is generally equal to salary continuance, subject to the $200 daily maximum.

If the employee took leave for a full day, the amount of infectious disease emergency leave pay is the lesser of $200 and salary ÷ number of days in pay period.

Example 1:

Maeve is entitled to paid infectious disease emergency leave. Maeve is paid $3,000 per bi-weekly pay period and works a five day week. Her infectious disease emergency leave pay for one day is the lesser of $200 and her daily pay of $300 ($3,000 ÷ 10 = $300). Maeve is therefore entitled to $200 in infectious disease emergency leave pay.

If the employee took leave for part of the day, the calculation is: hourly rate (salary ÷ number of hours the employee normally works in a pay period) x number of hours taken as paid infectious disease emergency leave. If this calculation results in an amount greater than $200, the employee would only be entitled to receive $200 and not the calculated amount.

Example 2:

Katie is entitled to paid infectious disease emergency leave. Katie is paid $1,500 per bi-weekly pay period and works a 40-hour week. She takes four hours of leave. Her hourly rate is $1,500 ÷ 80 = $18.75 per hour. Her infectious disease emergency leave pay is $18.75 × 4 = $75. (In addition to her infectious disease emergency leave pay, she is also entitled to her regular earnings for the part of the day that she worked).

If Katie’s infectious disease emergency leave pay had resulted in an amount greater than $200, she would be entitled to receive $200 and not the calculated amount. This $200 maximum applies only to the infectious disease emergency leave pay, not to her total wages for the day.

Performance-related wages

The infectious disease emergency leave pay an employee is entitled to where the employee is paid fully or partly based on their performance is the greater of the employee’s hourly rate, if any, and minimum wage for the time the employee took for paid infectious disease emergency leave to a maximum of $200 per day. Performance-related wages can include commission, commission plus an hourly wage, piece work or a flat-rate.

Example 1: Employee earns an hourly rate plus commission

Raquel is entitled to paid infectious disease emergency leave. She earns $16.00 per hour plus 2% commission on sales.

Raquel is scheduled to work eight hours. She works 1.5 hours and takes 6.5 hours of paid infectious disease emergency leave.

Raquel’s infectious disease emergency leave pay: $16 x 6.5 = $104.

(In addition to infectious disease emergency leave pay, she is also entitled to her hourly wage for the 1.5 hours worked and commission she earned while she worked, if any).

If Raquel’s infectious disease emergency leave pay calculation resulted an amount greater than $200, Raquel would only be entitled to receive $200. This $200 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 2: Employee paid entirely by commission

Francesca is entitled to paid infectious disease emergency leave. She earns 10% commission on all sales, plus expenses and a car allowance.

Francesca is scheduled to work eight hours. She works a portion of the day and makes sales of $5,000. She takes three hours of paid infectious disease emergency leave.

Francesca’s infectious disease emergency leave pay: applicable minimum wage rate × 3.

(In addition to infectious disease emergency leave pay, Francesca is also entitled to receive the $500 in commission she earned while she worked.)If the infectious disease emergency leave pay calculation resulted an amount greater than $200, Francesca would only be entitled to receive $200 and not the calculated amount. This $200 maximum applies only to the infectious disease emergency leave pay, not to her total wages for the day.

Example 3: Employee is a homeworker paid by piece work

Paula is entitled to paid infectious disease emergency leave. She earns $3.50 per phone call answered.

Paula is scheduled to work 8.5 hours, but works only two hours, answers nine phone calls, and takes 6.5 hours of paid infectious disease emergency leave.

Paula’s infectious disease emergency leave pay: applicable minimum wage × 6.5

(In addition to infectious disease emergency leave pay, Paula is also entitled to receive her regular earnings for the day — $3.50 × 9.)

If Paula’s infectious disease emergency leave pay calculation resulted in an amount greater than $200, Paula would only be entitled to receive $200. This $200 maximum applies only to the infectious disease emergency leave pay, not to her total wages for the day.

Employees who are scheduled to work overtime hours

If an employee is scheduled to work a shift which will include overtime hours, and they miss all or part of the shift to take paid infectious disease emergency leave, the employee will be entitled to the regular hourly rate only, not the overtime rate.

Example:

Pat is entitled to paid infectious disease emergency leave. Pat is paid $17 per hour and was scheduled to work a Saturday shift of eight hours. She had already worked 44 hours in the same week. She missed her entire shift to take paid infectious disease emergency leave.

Infectious disease emergency leave pay: $17 × 8 = $136. If Pat’s infectious disease emergency leave pay calculation resulted an amount greater than $200, Pat would only be entitled to receive $200.

Employees who are scheduled to work hours when a shift premium is paid

If an employee is scheduled to work a shift which will normally be paid at a higher rate due to a shift premium, and the employee misses all or part of the shift to take paid infectious disease emergency leave, the employee will be entitled to the regular hourly rate only, not the regular hourly rate plus the shift premium.

Example:

Minh is paid $16 per hour and is paid an additional $2.50 per hour for working weekend shifts. She is scheduled to work a Saturday shift of nine hours and leaves after working two hours to take paid infectious disease emergency leave.

Infectious disease emergency leave pay: $16 x 7 = $112

(In addition to infectious disease emergency leave pay, Minh is also entitled to receive her regular earnings for the hours she worked ($16 + $2.50) X 2)).

If Minh’s infectious disease emergency leave pay calculation resulted an amount greater than $200, she would only be entitled to receive $200. This $200 maximum applies only to the infectious disease emergency leave pay, not to her total wages for the day.

If paid infectious disease emergency leave is taken when an employee was scheduled to work on a public holiday

If an employee qualifies to take paid infectious disease emergency leave, this will also generally be considered reasonable cause for the purposes of public holiday entitlements. See the public holiday chapter for more information.

If an employee agrees to work (or is required to work) on a public holiday and misses some or all of the shift to take paid infectious disease emergency leave, infectious disease emergency leave pay will not include “premium pay” if the employee would have earned it had they worked instead of taking the leave on the holiday.

Example:

Arvinder works as a manager in a restaurant and is required to work on Victoria Day. She is paid the general minimum wage. She is scheduled to work 10 hours on the public holiday, and the employer has decided to give her premium pay for all hours worked on that day, plus public holiday pay (but no substitute day off in the future).

Arvinder works 6 hours of the shift and takes 4 hours off as paid infectious disease emergency leave.  Arvinder is entitled to:

  1. Entitlements from the Public Holidays part of the ESA:
    • Public holiday pay calculated in accordance with the public holiday rules of the ESA
    • Premium pay for the hours worked on the public holiday in accordance with the public holiday rules of the ESA (general minimum wage x 1.5 x 6 hours)
  2. Entitlements from the Paid Infectious Disease Emergency Leave part of the ESA:
    • No additional amount as infectious disease emergency leave pay

    Note that Arvinder is not entitled to premium pay for the four hours taken as paid infectious disease emergency leave.

Explanation:

Arvinder meets the requirements to take paid infectious disease emergency leave. Infectious disease emergency leave pay generally ensures that employees do not lose wages for the time they are not working when on paid infectious disease emergency leave, up to a maximum of $200 per day. In the case of Arvinder who takes paid infectious disease emergency leave on a public holiday where she was scheduled to work and to earn premium pay plus public holiday pay, her entitlements under the public holiday rules in the ESA already provide that she earns the amount she would have earned (minus premium pay) had she not taken the leave. As such, in this situation, Arvinder is not entitled to receive any amount in infectious disease emergency leave pay over and above her public holiday entitlements. Note that even though she is not entitled to any infectious disease emergency leave pay, one day of her statutory paid infectious disease emergency leave allotment is used (unless she provides notice in writing to her employer within the specified time frame electing to take the time as unpaid infectious disease emergency leave instead – see heading below). The public holiday pay and premium pay that Arvinder is entitled to under the ESAs public holiday rules is not infectious disease emergency leave pay. This is important because it means that the amount Arvinder is entitled to receive for the public holiday is not subject to the $200 daily infectious disease emergency leave pay maximum. Similarly, an employer cannot be reimbursed this amount through the employer reimbursement program (as the amount paid is what the employer owed Arvinder under the ESAs public holiday rules, regardless of the leave of absence).

Employee opt-out of paid leave

Where an employee is entitled to both unpaid and paid infectious disease emergency leave, it is the default that the days of paid infectious disease emergency leave will be taken first, unless the employee opts out of the paid leave.

Receiving infectious disease emergency leave pay may negatively affect an employee's eligibility for, or the amount of, benefits they're entitled to under other programs. To avoid this issue, employees may choose not to take paid infectious disease emergency leave under the ESA by opting out of the paid leave and taking the time as unpaid infectious disease emergency leave instead.

To opt out of paid infectious disease emergency leave, employees must advise their employer in writing of their decision to take the time as unpaid infectious disease emergency leave. This written notice must be made before the end of the pay period in which the leave occurs. If the employee does not advise the employer in writing by this deadline the employee will be entitled to paid infectious disease emergency leave.

An employee does not lose a day of paid infectious disease emergency leave if they opt out of the paid leave and instead choose to treat the absence as unpaid infectious disease emergency leave. In this situation, the paid infectious disease emergency leave can be taken for the next eligible absence.

Length of paid infectious disease emergency leave

Employees may be entitled to up to three full days of paid infectious disease emergency leave whether they are employed on a full or part-time basis.  See the heading “Eligibility - right to paid leave under the employee’s contract of employment” for information about how an employee’s contract of employment may affect the number of days the employee is entitled to receive as paid infectious disease emergency leave. Where an employee is entitled to both unpaid and paid infectious disease emergency leave, it is the default that the days of paid infectious disease emergency leave will be taken first, unless the employee opts out from the payment.

Employees have the right to be away from work on paid 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.  Employees can take paid infectious disease emergency leave in part days, full days or in periods of more than one day. When an employee takes a part day of paid infectious disease emergency leave (for example, to get a vaccination against COVID‑19), the employer must allow the employee to return to work for the remainder of the employee’s shift. If an employee takes only part of a day as paid infectious disease emergency leave, the employer can count it as a full day of leave. 

Example: Part-day paid infectious disease emergency leave

Sujata is entitled to three days of paid infectious disease emergency leave. Sujata comes to work as usual but develops a cough halfway through her shift. Based on direction provided by public health officials in respect of COVID‑19, she leaves work to self-isolate and to make arrangements to get a COVID‑19 test.

Sujata has the right to be on paid infectious disease emergency leave and to receive infectious disease emergency leave pay for the half-day she took to self-isolate and get a COVID‑19 test. Her employer can (but does not have to) count the absence as a full day of paid infectious disease emergency leave.

The employer is only allowed to count the half-day absence as a full day of leave when determining if Sujata’s three-day entitlement has been used up. The employer must, for example, still pay Sujata for the half day that she worked, and has to include the hours worked to determine whether she worked overtime, or reached her daily or weekly limit on hours of work.

Employers can only apply to be reimbursed for a maximum of three calendar days even if they chose not to count part days as full days of paid leave.

Unpaid infectious disease emergency leave taken between April 19 and April 28, 2021

Although the ESA was amended to include paid infectious disease emergency leave on April 29, 2021, the entitlement to paid infectious disease emergency leave is deemed to have started on April 19, 2021

Eligible employees who took an unpaid infectious disease emergency leave between April 19, 2021 and April 28, 2021 for a reason for which they can take paid leave, could have taken those days as paid leave instead. To do this, employees must have advised their employer of their election in writing no later than May 12, 2021.  

Employer reimbursement for paid leave

Eligible employers are entitled to be reimbursed the amount of infectious disease emergency leave pay that they paid to their employees, up to $200 per employee per day taken.

Eligible employers must make their application for reimbursement to the Workplace Safety and Insurance Board (WSIB) within 120 days of the date the employer paid the employee, or by July 29, 2023, whichever is earlier.

This is a program of the Ministry of Labour, Immigration, Training and Skills Development. The Ministry is providing funding to the WSIB Board to administer this program. This program is not a WSIB program and will not be funded by the WSIBs insurance fund.  Eligible employers do not need to be registered with the WSIB in order to receive this reimbursement.

If an employee takes only part of a day as paid infectious disease emergency leave, the employer can – but does not have to – count it as a full day of leave. Employers can only apply to be reimbursed for a maximum of three days even if they chose not to count part days as full days of paid leave. For example, if an employee took a half day of paid leave on a Monday, two full days of paid leave on the Tuesday and Wednesday and an additional half day on the Thursday, the employer can only apply for reimbursement three of these days.

Rights during leave

Employees who take unpaid infectious disease emergency leave and/or paid 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.

Interactions with other ESA rules

Interaction with other leaves

In addition to unpaid infectious disease emergency leave and paid 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 unpaid infectious disease emergency leave and/or paid 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 — which includes infectious disease emergency leave pay — 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 unpaid infectious disease emergency leave or paid infectious disease emergency leave when a public holiday occurs will meet the “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 an 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.

Where an employee is entitled to both unpaid and paid infectious disease emergency leave, it is the default that the days of paid infectious disease emergency leave will be taken first, unless the employee opts out by notifying their employer in writing before the end of the pay period in which the leave occurs that they choose to take unpaid infectious disease emergency leave. Note that an employee who is deemed to be on infectious disease emergency leave as a result of Ontario Regulation 228/20 is not required to advise their employer of the deemed leave. They are simply considered to be on leave.

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 unpaid infectious disease emergency leave and/or paid 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 (paid or unpaid) 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.

Employment insurance benefits and other federal supports

Employees who take unpaid infectious disease emergency leave and/or paid infectious disease emergency leave may also 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 infectious disease emergency leave provisions of the ESA is not the same as the right to the payment of employment insurance benefits or other federal government supports. An employee may be entitled to a leave under the ESA whether or not they have applied for or qualified for federal benefits or supports.

Note that receiving paid infectious disease emergency leave may negatively affect an employee’s eligibility for or the amount of benefits they’re entitled to under some federal programs. To avoid this issue, employees may choose not to take paid infectious disease emergency leave they are entitled to under the ESA by opting out of paid infectious disease emergency leave and taking the time as unpaid infectious disease emergency leave instead. 

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