By Erika Montisano

Premier Doug Ford has declared a state of emergency in Ontario as of early morning on March 17, 2020. This announcement comes just a day after Doug Ford’s office directed Ontario’s Minister of Labour, Training and Skills Development to draft legislation that, if passed, would provide significant protection for workers who are away from work due to circumstances surrounding the evolving COVID-19 pandemic. Read about the legislative update here.

The current declaration is made pursuant to section 7.0.1(1) of Ontario’s Emergency Management and Civil Protection Act (“EMCPA”). This allows the Ontario government to issue an order declaring that an emergency requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or property, or where resources normally available to the government are insufficient to address the emergency or are unattainable without the risk of serious delay. Employers should become familiar with how the declaration can impact their workforces.

As part of the order, the Ontario government has required the immediate closure of the following:

  • All facilities providing indoor recreational programs;
  • All public libraries;
  • All private schools (as defined in the Education Act);
  • All licensed child care centres;
  • All bars and restaurants, except to the extent that such bars or restaurants provide takeout or delivery;
  • All theatres and cinemas, including those offering live performances; and
  • Concert venues.

Further, all organized public events of over 50 people, including parades, events and communal services within places of worship, are prohibited. The closures and prohibitions are expected to last until March 31, 2020, at which point, the province will re-evaluate whether it will need to extend such order. Grocery stores, pharmacies, manufacturing plants, public transportation, construction sites, office buildings and other important public services will continue to operate.

Employer Considerations

The government’s declaration of an emergency under the EMCPA means that certain employees of affected establishments can take advantage of declared emergency leave under the Employment Standards Act (“ESA”). Under the declared emergency leave provisions, an employee is entitled to a leave of absence without pay if 1) an emergency has been declared under the EMCPA, and 2) the employee is unable to perform the duties of his or her position because:

  1. the employee is subject to an order under section 7.0.2 the EMCPA;
  2. the employee is subject to an order under the Health Protection and Promotion Act (“HPPA”); or
  3. the employee is needed to provide care or assistance to a prescribed family member.

For clarification, an employee is not entitled to declared emergency leave solely because the government has declared an emergency under the EMCPA. The employee must also be unable to work due to one the circumstances listed above.

Section 7.0.2 of the EMCPA provides the government with the authority to make various emergency orders, including orders regulating or prohibiting travel, establishing facilities for the care, welfare, safety and shelter of individuals, and closing establishments as necessary to respond to or alleviate the effects of an emergency. In the current situation, the closure of the establishments listed above may allow affected employees to claim entitlement to declared emergency leave.

As with other statutory leaves of absence, an employer is entitled to request evidence reasonable in the circumstances that an employee is entitled to the leave. Such evidence may include a copy of an order made under the EMCPA or the HPPA. For employees who are providing assistance or care to a prescribed family member affected by the emergency, evidence could include a note from the establishment that is closed because of the declared emergency order.

An employee entitled to declared emergency leave must inform their employer that he or she will be claiming the leave either in advance, or as soon as possible after beginning it. The employee is entitled to the leave for as long as he or she is not performing his or her duties due to the declared emergency.

Stringer LLP will continue to monitor the situation closely, and will provide updates on new developments as they occur.

For more information, please contact:

Erika M. Montisano at emontisano@stringerllp.com or 416-862-1616

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