Answering employers’ COVID-19 medical leave and note questions

Last updated: Oct. 8, 2021 

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By Siskinds LLP, Siskinds Law Firm

 

Employees that self-isolate because they have COVID-19 must have a doctor’s note saying they have recovered and can return to work: True or False?

 

It depends. Ontario’s Occupational Health and Safety Act requires employers to take every “reasonable precaution” necessary to protect their workers. If an employee was confirmed to have contracted COVID-19 it may be a reasonable precaution to request evidence that the employee is no longer contagious, has recovered and is able to safely return to return to work. A medical note from the employee’s doctor would be an example of such evidence.

However, in some circumstances (i.e. the employee can work from home), it may not be reasonable to require a doctor’s note before allowing the employee to perform work.

 

Employees that have come in contact with a confirmed COVID-19 case or have been travelling must self-isolate for two weeks. Then they can return to work without a doctor’s note: True or False?

 

True for the most part. Generally, if the employee is not symptomatic after a 14-day isolation period, employers should be discouraged from requiring a medical note. Resources in the health care system are being carefully managed to ensure adequate care for those who really need it.

 

Employees that self-isolate because they want to be safe can do so; however, they are not eligible for pay but can apply for EI/CERB: True or False?

 

It depends. An employee is entitled to an unpaid job-protected emergency leave under s. 50.1 of the Employment Standards Act, 2000 (“ESA”) if they are not working because either:

• the provincial government has declared an emergency, and they work in a non-essential (i.e. closed) business or must care for a family member;

OR

• They are being supervised, monitored or treated for illness on the advice or direction of a medical professional, have been sent home from work to protect other employees from infection, are providing care to a family member, or are subject to isolation post-travel.

None of this contemplates an employee making a personal choice. If an employee chooses to remain off work, there are two options. The employer may treat it as an unapproved leave, i.e. abandonment of employment and advise the employee that their employment will end as a result. In this event, we do not expect the employee would qualify for EI benefits or CERBs, at least initially.

However, in the current environment, many employers are choosing instead to treat this type of absence as a voluntary, approved, unpaid leave. In this event, it is not clear whether the employee will be eligible for CERBs and no assurances should be given to the employee in that regard.

Note that where the employee’s absence from work is a personal choice, employers should ensure that the absence is characterized as a voluntary approved leave, and not a “layoff”. There are limits to how long a temporary layoff can extend before the layoff becomes an automatic termination of employment under the ESA.

Finally, note that an approved voluntary leave could transition into an emergency leave if the employee becomes ill with COVID-19 or meets one of the other applicable criteria.

 

Employees that choose not to come to work because they want to stay safe can stay off as long as they choose and if they decide to return to work do not need a doctor’s note: True or False?

 

It depends. A personal choice to remain off work should be treated as either abandonment of employment or a voluntary approved leave, as set out above.

If the employer accepts the employee’s request for a voluntary approved leave, there are no legal limits on the length of that leave. As a result, we recommend that employers state their expectations at the outset, e.g. “when social distancing restrictions for our industry are relaxed, we expect you to return to work immediately. If you don’t, we may deem you to have abandoned your employment.”

There should be no need for a doctor’s note in this situation.

 

About Siskinds Law Firm

 

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Disclaimer: The material above is provided for educational and informational purposes only.