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Employment - ESA Leave. Pham v. Qualified Metal Fabricators Ltd.
In Pham v. Qualified Metal Fabricators Ltd. (Ont CA, 2023) the Court of Appeal considered the ESA's COVID-related 'Infectious Disease Emergency Leave' ('IDEL'):[34] In response to the COVID pandemic, Ontario enacted Regulation 228/20 which created a new category of leave under the ESA called the IDEL. Regulation 228/20 sets out when an employee is deemed to be on IDEL (s. 4); and when an employee, whose hours of work are temporarily reduced or eliminated by the employer, for reasons related to the COVID-19 pandemic, is not considered to be laid off (s. 6) or constructively dismissed (s. 7). Sections 5, 6 and 7 exempt an employee from the application of IDEL whose employment was terminated on or after March 1, 2020, or who was constructively dismissed or laid off for longer than the temporary lay-off period before May 29, 2020. Finally, s. 8 prohibits employees from bringing any complaint during the designated pandemic period. . Taylor v. Hanley Hospitality Inc.
In Taylor v. Hanley Hospitality Inc. (Ont CA, 2022) the Court of Appeal considered some COVID-inspired employment leave changes (infectious disease emergency leave) to the Employment Standards Act:[6] On March 17, 2020, pursuant to s. 7.0.1(1) of the Emergency Management and Civil Protection Act, R.S.O. 1990, Ch. E.9 (“EMCPA”), the Ontario government declared a state of emergency in response to the world-wide COVID-19 pandemic. As a result of the declared emergency, under 7.0.2 of the EMCPA, the Lieutenant Governor in Council was broadly empowered to make such emergency orders that were “necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property”. Numerous emergency measures were enacted and still continue.
[7] In issue in this appeal are the amendments to ss. 50.1 and 141 of the ESA and the provisions of O. Reg 228/20 made under the ESA that create a new category of leave under the ESA: the infectious disease emergency leave (“IDEL”). The Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, S.O. 2020, c. 3 (“ESAA”) contained the amendments and was assented to on March 19, 2020. O. Reg. 228/20 was made under the ESA on May 28, 2020 and filed on May 29, 2020.
[8] Sections 50.1(1.1)(a) and (b) of the ESA prescribe the circumstances when an employee is entitled to an IDEL without pay if the employee will not be performing the duties of his or her position. Section 50.1(1.2) prescribes when an employee is entitled to a paid leave of absence and the employer’s obligations to provide pay if an employee is required to miss work for reasons associated with COVID-19. Section 50.1(1.3) provides that under s. 50.1(1.2), an employee is entitled to a total of three paid days of leave.
[9] Section 50.1(1.1)(a) deals with circumstances that prevent an employee from performing the duties of his or her position because of an emergency declared under section 7.0.1 of the EMCPA, an order made under section 7.0.2 of the EMCPA or the Health Protection and Promotion Act, because he or she is needed to provide care or assistance to a person designated under section 50.1(8), or for other prescribed reasons. Section 50.1(1.1)(b) focuses on reasons preventing an employee from performing the duties of his or her employment that are caused by or related to exposure to a designated infectious disease, such as being under medical investigation or treatment, quarantine, providing support to an affected individual, or travel restrictions. Other reasons include because of an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease, because of a direction from an employer in response to a concern that the employee may expose other individuals in the workplace to the designated infectious disease, or because of other prescribed reasons.
[10] In addition to the existing regulatory powers for carrying out the purposes of the ESA under section 141(1), the regulatory powers of the Lieutenant Governor in Council were amended and expanded in the ESAA to allow the Lieutenant Governor in Council to make broad transitional regulations, including:i. Section 141(2.0.3.3) which permits regulations “for any transitional matter that the Lieutenant Governor in Council considers necessary or advisable in connection with the implementation of the amendments made by the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020”. Sections 141(2.0.3) to (2.0.3.5) also refer to a number of acts enacted pre and post pandemic under which the Lieutenant Governor in Council may regulate in connection with the implementation of the amendments of those acts: Fair Workplaces Better Jobs Act, 2017; Making Ontario Open for Business Act, 2018; Restoring Ontario’s Competitiveness Act, 2019; Employment Standards Amendment Act (Infectious Disease Emergencies), 2020; Covid-19 Putting Workers First Act, 2021; Working for Workers Act, 2021;
ii. Section 141(2.0.4) provides that in the event of a conflict between the ESA or its regulations, and a regulation made under sections 141(2.0.3) to (2.0.3.5), the latter, transitional regulations prevail;
iii. Section 141(2.1) that allows for regulations designating an infectious disease for the purpose of section 50.1 and respecting all aspects of the IDEL;
iv. Section 141(2.2) that stipulates that a regulation made under, among other subsections, (2.1), or a regulation prescribing a reason for the purposes of subclause 50.1(1.1)(a)(iv) may, among other things,(b) provide that an employee who does not perform the duties of his or her position because of the declared emergency and the prescribed reason, or because of the prescribed reason related to a designated infectious disease, as defined in section 50.1, is deemed to have taken leave beginning on the first day the employee does not perform the duties of his or her position on or after the date specified in the regulation. [11] O. Reg. 228/20, made under the ESA and subtitled, “Infectious Disease Emergency Leave”, for the purposes of s. 50.1 of the ESA designates COVID-19, among others, as an infectious disease. It then sets out the parameters of and entitlements to IDEL. These include when an employee is deemed to be on IDEL (s. 4); when an employee is not deemed to be on IDEL (s. 5); and when an employee, whose hours of work are temporarily reduced or eliminated by the employer, or whose wages are temporarily reduced by the employer, for reasons related to the designated infectious disease during the COVID-19 period, is not considered to be laid off (s. 6) or constructively dismissed (s. 7). Sections 5, 6 and 7 exempt an employee from the application of IDEL whose employment was terminated on or after March 1, 2020, or who was constructively dismissed or laid off for longer than the temporary lay-off period before May 29, 2020. Finally, s. 8 prohibits employees from bringing any complaint during the designated pandemic period.
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