On Dec. 7, the government in Ontario, Canada, extended the "COVID-19 Period" and the temporary measures introduced by O.Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (ESA) until July 30, 2022. The temporary measures introduced by the regulation were previously set to end on Jan. 1, 2022. The "COVID-19 Period" has thus far been in effect since March 1, 2020. On Dec. 9, 2021 the Ontario Government filed O. Reg. 834/21 which amended the regulation's COVID-19 Period.
In May 2020, the government of Ontario introduced the regulation in response to the COVID-19 pandemic. This regulation amended provisions of the ESA that related to Infectious Disease Emergency Leave, temporary layoffs and deemed terminations of non-unionized employees. The regulation provides employers with temporary relief from the notice of termination and severance provisions of the ESA during the COVID-19 Period.
During the COVID-19 Period, if an employer temporarily reduced or eliminated a nonunionized employee's work hours because of COVID-19, the employee is "deemed" to be on a job-protected unpaid infectious disease emergency leave.
During the COVID-19 Period (March 1, 2020 to July 30, 2022):
- A nonunionized employee whose employer has temporarily reduced or temporarily eliminated their work hours for reasons related to COVID-19 is deemed to be on a job-protected unpaid infectious disease emergency leave.
- A non-unionized employee is not considered to be laid off if their employer temporarily reduces or temporarily eliminates their hours of work or wages for reasons related to COVID-19.
- A non-unionized employee is not considered to be constructively dismissed under the ESA if their employer temporarily reduces or temporarily eliminates their hours of work or wages for reasons related to COVID-19.
After the COVID-19 Period (beginning on July 31, 2022):
- Employees will no longer be deemed to be on unpaid infectious disease emergency leave.
- The ESA's regular rules around constructive dismissal will resume. This means a significant reduction or elimination of an employee's hours of work or wages may be considered a constructive dismissal under the ESA, even if it was done for reasons related to COVID-19.
- The ESA's regular rules around temporary layoff will also resume. For practical purposes, an employee's temporary layoff clock re-sets on July 31, 2022. Subject to certain exceptions, a temporary layoff can last no more than thirteen (13) weeks in any period of twenty (20) consecutive weeks, after which the temporary layoff will be deemed a termination of employment. The employer will then be subject to the notice of termination and severance pay provisions of the ESA.
The extension of the temporary measures introduced under the regulation is significant for those employers who have temporarily reduced or eliminated employees' hours of work or temporarily reduced employees' wages, or who intend to do so, during the COVID-19 Period in response to the COVID-19 pandemic.
In parallel with the announcement of the extension of IDEL, the Ontario government also extended the Worker Income Protection Benefit Program (WIPB) until July 31, 2022. The WIPB was originally set to continue until Dec. 31, 2021, and requires employers to provide an employee up to $200 of pay per day for up to three days if an employee is required to miss work for reasons associated with COVID-19. Employers have 120 days after their employees are paid to submit their application for reimbursement to the Worker Income Protection Benefit Program.
Alice Wang and Michael S. Richards are attorneys with DLA Piper in Toronto. © 2021 DLA Piper. All rights reserved. Reposted with permission of Lexology.
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