The Employment Standards Act, 2000 provides that an employee can take an infectious disease emergency leave (IDEL) if they will not be performing the duties of their position because, among other things, “they are under a direction given by their employer in response to the employer’s concern that the employee may expose others in the workplace to the infectious disease.”
On March 3, 2021, the Government of Ontario’s website providing guidance on the interpretation and application of IDEL indicated that an employer could place an employee on IDEL “where the employer is concerned that employees who have not received the COVID-19 vaccine may expose others in the workplace to COVID-19 and tells them not to come to work until they have been vaccinated.”
However, just a month later on April 8, 2021, the government’s guidance was changed, removing any tacit approval for the use of IDEL for unvaccinated employees.
That said, IDEL continues to be available where an employer holds an employee out of work because of a concern that they may expose others. We would argue that unvaccinated status continues to be a legitimate basis for holding staff members out of work in certain situations and subject to human rights considerations. If you are considering implementing such measures it’s important to have a clear policy in place and to consult with legal counsel.
PooranLaw will continue to monitor legal developments related to vaccination policies. In the meantime, if you require legal assistance in drafting these policies, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.