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Nelligan O’Brien Payne gratefully acknowledges the contribution of Denise Deschênes, Student-at-Law in writing this blog post.

For those of us living in the nation’s capital, tornado warnings are becoming a more frequent occurrence.

The most recent tornado to affect Ottawa seemed to take everyone by surprise, including severe weather meteorologists. So, if you receive a smart phone “alert” or look outside your window to find dangerous weather conditions, do you still have to go to work? What about if your home is hit by a tornado?

According to the EMCPA, an emergency is a situation or an impending situation that constitutes a danger of major proportions.

The Employment Standards Act (“ESA”) contemplates the existence of such leave, in addition to what employees should do in cases where an emergency leave is required or when there has been a declared emergency. This blog will focus on those topics.

What is an “emergency”?

According to the Emergency Management and Civil Protection Act (“EMCPA”) an emergency is a situation or an impending situation that constitutes a danger of major proportions. The danger must be something that could result in serious harm to people or cause substantial damage to property. The cause can be anything from forces of nature to accidents, diseases or health risks. A tornado would fall within the definition of an emergency.

Pursuant to s. 50.1 of the ESA, employees are entitled to an unpaid leave of absence if the employee will not be performing the duties of his or her position because of an emergency. A state of emergency must have been declared pursuant to the EMPCA.

The Emergency Management and Civil Protection Act (“EMCPA”)

The EMCPA carefully defines what constitutes a “state of emergency”. To declare a state of emergency, the Lieutenant Governor in Council or the Premier may, by order, declare that an emergency exits throughout Ontario or in any part of Ontario. To declare a state of emergency, the emergency must require immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property. Additionally, one of the following circumstances must exist for the state of emergency to be declared:

  1. The resources normally available to a government body cannot be relied upon without risk of serious delay;
  2. The resources referred to above may be not be sufficiently effective to address the emergency;
  3. It is impossible, without risk of serious delay, to determine whether the resource referred to above can be relied upon.

Employee’s Duties During a State of Emergency

  • Under the ESA, employees have certain obligations if a state of emergency is declared:
    • Employees must tell their employer if they are taking leave under s. 50.1 of the ESA.
  • Or, if an employee begins leave before telling their employer, the employee must tell their employer of the leave as soon as possible after it begins.
  • Finally, employers may ask their employees to provide reasonable evidence at a reasonable time that the employee is entitled to the emergency leave

If you ever find yourself in what you believe to be a state of emergency and encounter issues with obtaining leave, or if you are an employer who wants to learn more about your obligations towards your employees when an emergency arises, contact our Employment Law Group.


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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