Ontario Extends Infectious Disease Emergency Leave for Workplaces
January 2021 Charity & NFP Law Update
Published on January 28, 2021

By Barry W. Kwasniewski

Unpaid, job-protected leave during the ongoing COVID-19 pandemic will continue to be available to employers and employees in Ontario for at least the first half of this year. A news release published on December 17, 2020 announced the extension of Infectious Disease Emergency Leave (“IDEL”) until July 3, 2021, under the Ontario Employment Standards Act, 2000 (“ESA”). The provincial government stated its intention to “protect jobs by helping businesses avoid costly payouts and potential closures” and to continue “offering protection to workers that are laid off due to COVID-19.” Ontario Regulation 765/20, filed on December 17, amended O Reg 228/20: Infectious Disease Emergency Leave to extend the “COVID-19 Period” under section 50.1 of the ESA. IDEL provides unpaid, job-protected leave of absence for non-unionized employees temporarily laid off due to an infectious disease emergency, such as the current coronavirus pandemic, to be determined by regulation.

Under Ontario and Canadian common law, a constructive dismissal occurs when the terms and conditions of employment are substantially altered, and is treated by the courts effectively as a legal repudiation of the employment contract without cause — allowing employees to claim wrongful dismissal. The COVID-19 Period initially was to last from March 1, 2020 until “six weeks after the day that the emergency declared by Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act is terminated or disallowed.” That emergency declaration terminated on July 24, 2020, when the Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020 came into force, leaving the IDEL clock running for at least six more weeks until September 4, 2020. The provincial government then extended IDEL by regulation until January 2, 2021.

In its December 17, 2020 announcement, the government noted its concern to prevent employers from facing costly termination and severance payouts during the difficult economic situation caused by the pandemic. IDEL law was introduced by an amendment to the ESA — the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 — that came into force last year on March 19, 2020.

Read the January 2021 Charity & NFP Law Update