CASE ALERT: Emergency Orders Allow Employers to Deny IDEL and other ESA Leaves where “reasonably necessary” 

The recent decision in Ontario of OPSEU, Local 101 v Windsor Regional Hospital, 2021 CanLII 40879 provides important clarification on how Emergency Orders allowing certain essential services employers to deviate from collective agreements and legislative obligations interacts with statutory leaves of absence, including Infectious Disease Emergency Leave (IDEL).  This is particularly relevant to health care providers and developmental services agencies that are struggling with staffing shortages due to the pandemic.

The Facts

 The Grievor in this matter, represented by the Ontario Public Service Employees Union, Local 101,  filed a grievance alleging that the employer violated the collective agreement by not permitting her to take IDEL at the completion of her parental leave.  The Employer brought a preliminary motion, contending that members of the Union’s bargaining unit are not entitled to IDEL under the ESA  because of Ontario Regulation 74/20 . This regulation was originally an order under the Emergency Management and Civil Protection Act, 1990(EMPCA) and was subsequently an order under the Reopening Ontario (A Flexible Response to COVID-19) Act. 

 The Employer identified the issues in dispute as follows: 

  1.  Does O. Reg. 74/20 apply to the Grievor’s request for IDEL?This regulation isequivalent to o.reg. 82/20 – which gives employers in the DS Sector the right to refuse leaves under statute. 
  2.  Does the grievance suspension provision of O. Reg. 74/20 [s. 3(vi)] deprive this arbitrator of jurisdiction?


The arbitrator held that the words in O. Reg. 74/20 clearly set out and accomplish the legislative intention to provide healthcare employers with the authority to cancel or defer statutory leaves and that this authority is intended to prevail despite any other statute. Pursuant to O. Reg. 74/20 s.3(i)(E), the Employer may defer or cancel any IDEL to which the Grievor may be entitled under the ESA.  

This means that the hospital employer could cancel IDEL leaves when reasonably necessary to respond to, prevent and alleviate the outbreak of COVID-19 for patients. The arbitrator commented that the way the  general process in the ESA  is that the employee advises their employer that they are taking the IDEL, at which point, the employer may ask the employee to provide evidence to support their need for it. However, employers are not entitled to ask for a doctor’s note. Presumably, there could be a dispute about whether the employee qualifies for IDEL but if they do, they are entitled to take it.

Where the employer in question is subject to an emergency order that gives them a right to refuse leaves of absences (such as Health Care providers that are subject to O. Reg. 74/20  or Developmental Services agencies that are subject to O. Reg. 82/20) then notwithstanding a general entitlement to take IDEL, the employer can cancel or defer the leave before it begins or after it has begun.  

Key Takeaway: 

The key takeaway from this case is that where employers have staffing shortages, it would be within their rights to refuse leave where “reasonably necessary” – i.e. no less intrusive options for addressing those staffing shortages. However, it is important to note that the Human Rights Code trumps all other legislation, including emergency orders. Therefore, where a request for IDEL leave is based in human rights protected grounds, it will be important to assess whether accommodation is possible short of undue hardship. 

 PooranLaw will continue to monitor legal developments related to Infectious Disease Emergency Leave and Emergency Orders. In the meantime, if you require legal assistance in determining how these new rules apply to you or your organization, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team. 

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.