Under ss. 50.1(1.1)(b)(iv) of the ESA, an employee is eligible for infectious disease emergency leave if the employee will not be performing the duties of the employee’s position in response to the employer’s concern that the employee may expose others in the workplace to the designated infectious disease.

Section 50.1 of the manual has been updated to add a new example of the application of that provision. 

The new example provides that where an employer chooses to make a policy about COVID-19 vaccination and tells an employee not to come to work until the employee has been vaccinated against COVID-19, out of a concern that unvaccinated employees may have the disease and expose others in the workplace to it, an employee who stays home until vaccinated is eligible for IDEL under subclause (iv).

There is currently text in the discussion of the examples under subclause (iv) stating that this subclause does not create authority for employers to direct employees to stay away from the workplace and to not perform the duties of their position in response to a concern about exposing others to a designated infectious disease, as the ESA does not address issues about health and safety in the workplace or employers’ authority to exclude employees from the workplace.  The subclause simply provides that if the employer does direct employees to stay away from the workplace for this reason, that the employee is eligible for infectious disease emergency leave. A new statement has been added to this discussion to clarify that the question of whether the employers’ actions described in the examples – including the new example above - are appropriate or lawful under other laws is not a matter for the ES Program.