By Rawan Abdelbaki
It has been just over two months since COVID-19 was declared a global pandemic. It was only a few days after that when the Conservative government of Ontario passed Bill 186, Infectious Disease Emergencies amendment to the Employment Standards Act.
Bill 186 was designed to offer job protections to those workers who may find themselves ill, have to self-isolate, or in a situation where they have to take care of a sick family member. While this legislation may be praised for its expanded definition of ‘family members’ who may require care due to COVID-19, it provides no financial support for this leave. In fact, given Doug Ford’s stated commitment to slash healthcare funding, we may also interpret this legal gesture as an effort to offload care work to the home and away from a starving healthcare sector.
Importantly, Bill 186 also legislates that employers “shall not require an employee to provide a certificate from a qualified health practitioner as evidence” and that workers provide “evidence reasonable in the circumstances.” Unlike Ontario Minister of Labour Monte McNaughton’s laughable declaration that this is the most ‘progressive’ labour legislation to be introduced in the province, workers fought for and won the legal abrogation of employers’ demand for medical notes when Bill 148 (the Fair Workplaces, Better Jobs Act, 2017) was passed. There is overwhelming consensus among medical experts and labour rights advocates that the requirement to present evidence of an illness not only tips the balance of power to the employers, but that it is detrimental to public health if workers have to choose between earning a paycheque or going to work sick. The considerable victories made through Bill 148 – which also included the right to two paid sick days and eight additional unpaid emergency leave days per year – were promptly reversed once Ford won government and passed Bill 47, the Making Ontario Open for Business Act, in 2018.
Further, while most leaves under the ESA do entitle employers to require workers to provide “evidence reasonable in the circumstances,” the unprecedented and devastating circumstances presented by COVID19 should not require any evidence, as Goldblatt Partners’ Daniel Sheppard states in his review of Bill 186, while also suggesting that the current iteration of the Bill could “encourage unreasonable employers to discourage leave and lead to needless disputes.”
In response to the inadequacy of the government’s response, the Decent Work & Health Network, and the Workers’ Action Centre have each demanded 21 paid job-protected emergency leave days – a measure that would at least alleviate some of the risks that essential frontline workers have to confront every time they go to work, whether it be in grocery stores, food service, or the care sector.
In fact, the tragic abandonment of seniors in this province can be traced not only to the privatized for-profit model of long-term care (LTC) facilities, but, equally, to the poor working conditions of a predominantly racialized and gendered workforce who have been dying while they work to keep people alive and healthy. In the absence of adequate supply of personal protective equipment (PPE), and with an abysmal record on upholding and enforcing workers’ right to refuse unsafe working conditions, Doug Ford has already announced dangerously ambitious plans to re-open numerous sectors and businesses in the province.
CERB in lieu of Paid Sick Leave?
While work and employment regulation typically fall under provincial jurisdiction, the Canada Emergency Response benefit (CERB) partially functions as paid sick leave. To be eligible for CERB, a worker need not be laid off, and can get access to the benefit if they have been unable to work either because they are sick or because they are caring for children or dependents if they are sick due to COVID-19. As a recent report by the CCPA demonstrates, however, nearly a million people living in Canada will fall through the cracks, unable to access neither EI nor CERB, and this includes those who were unemployed prior to the pandemic and whose job loss did not occur due to COVID19. And with the de facto non-existence of the right to refuse unsafe work in Ontario, workers whose calls for refusing unsafe work have been unheeded by the government will also likely not qualify for this benefit since workers cannot have left their jobs ‘voluntarily’.
With these restrictive eligibility criteria, it is fair to speculate that unemployed workers who are not eligible for government supports will likely be forced to resume their job search in light of the re-opening of the economy, and they will likely have to work without any paid sick leave protections. The same goes for many students whose eligibility for the smaller Canada Emergency Student Benefit (CESB) of $1250 (up to $2000 if a student or recent graduate has a disability and dependents) is also tied to an active search for work through a government job bank, a la the workfare models of social assistance.
As things stand today, the CERB application is set to expire after December 2020. Without a vaccine or treatment for COVID-19, it is not clear how these grandiose re-opening plans will not lead to a violent second or third waves of infection without the immediate implementation of adequate paid sick leave. If we have any hopes of resuming some degree of safe normalcy in the future, provincial governments across Canada should introduce and solidify meaningful emergency measures with public health at the centre. In Ontario, Bill 186 just won’t cut it.
Join the May 21 Day of Action to pressure Doug Ford to implement paid sick leave for all workers!
Rawan Abdelbaki is a PhD candidate in Sociology at York University. She’s also a labour activist. @rawanbaki