End of Temporary Lay-offs from Work for COVID-19 Emergency - Carters Professional Corporation - Barristers, Solicitors and Trade-Mark Agents

End of Temporary Lay-offs from Work for COVID-19 Emergency
August 2020 Charity & NFP Law Update
Published on August 27, 2020

By Barry W. Kwasniewski

Ontario’s declared emergency in response to the COVID-19 pandemic ended on July 24, 2020, with the coming into force of the Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020 (“ROA-2020”). The termination of the declared emergency has effects on various temporary relief measures, including the Infectious Disease Emergency Leave (“IDEL”), as prescribed by Ontario Regulation 228/20 (“O. Reg. 228/20”) under the Employment Standards Act, 2000 (“ESA”). The end of the declared emergency in Ontario means that the “COVID-19 Period”, as defined in O. Reg. 228/20, would include the period from March 1, 2020 to September 4, 2020 (six weeks after the end of the declared emergency). As explained in COVID-19 Resource of Charities and NFPs: New Infectious Disease Emergency Leave Provides Relief to Ontario Employers, employees on temporary lay-offs due to COVID-19 related reasons are, in essence, deemed to be on IDEL during the COVID-19 Period. As such, the relief provisions of O. Reg. 228/20 that deemed employees to be on IDEL if their hours of work and/or wages were reduced or eliminated for reasons related to COVID-19, during the COVID-19 Period, will expire on September 4, 2020.

However, the effect of the relief provisions of O. Reg. 228/20 was that any reduction or termination in work hours and/or wages during the COVID-19 Period would not count toward the temporary lay-off calculation. Therefore, any employee whose work hours and/or wages have not been restored by September 4, 2020 may be temporarily laid off starting the week after September 4, 2020 under the standard temporary lay-off provisions under the ESA. What this means for employers is that, after September 4, 2020, the employer may be able to temporarily lay off employees for up to 13 weeks in a 20-week period, which can be extended up to 35 weeks in a 52-week period if certain conditions under the ESA are met. Any temporary layoff longer than 13 weeks (or 35 weeks, as applicable) will be deemed a termination of employment subject to the notice of termination and severance pay provisions of the ESA.

Further, based on case law decided before the COVID-19 pandemic, it is possible that a court could rule that a temporary reduction or elimination of hours of work or a temporary reduction in wages due to COVID-19 after September 4, 2020 may entitle an employee to damages for constructive dismissal. This could potentially be the result should any employees not accept being on temporary lay-off and decide to sue for wrongful dismissal.‎

It is also important to note that employees continue to have the right to be away from work on unpaid IDEL for as long as the event that triggered the entitlement to the leave lasts. For example, in the context of COVID-19, section 50.1 of the ESA provides that employees may take IDEL if they will not be performing the duties of their position because of any of the following reasons:

The employee is under individual medical investigation, supervision or treatment related to COVID-19.
The employee is following a COVID-19 related order issued under sections 22 or 35 of the Health Promotion and Protection Act.
The employee is in quarantine, isolation (voluntary or involuntary), in compliance with official health instructions or directions related to COVID-19.
The employee is under a direction given by his or her employer in response to the employer’s concern that the employee might expose other individuals in the workplace to COVID-19.
1. For example, this would include the employer directing the employee to stay at home for a period of time if the employee has recently travelled internationally and the employer is concerned the employee may expose others in the workplace to COVID-19.
The employee is providing care or support (including care for a child whose school or day care is closed due to COVID-19) to certain individuals listed under subsection 50.1(8) of the ESA.
The employee is directly affected by travel restrictions related to COVID-19 while outside Ontario and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

After the above-listed triggering event is over, the employee’s entitlement to IDEL would end and their normal obligations to be at work would resume.

Read the August 2020 Charity & NFP Law Update