By Barry W. Kwasniewski and Martin U. Wissmath

‘Deemed’ Infectious Disease Emergency Leave Ends, but Paid and Unpaid Leave Extended

Ontario employers will be affected by recent changes to employee entitlements to Infectious Disease Emergency Leave (IDEL) under the Employment Standards Act, 2000 (ESA) in response to the COVID-19 pandemic. Employers remain obligated to provide their employees with up to three days of paid IDEL due to COVID-19 up to March 31, 2023. For paid IDEL, employers can be reimbursed up to $200 per day per employee from the provincial government’s COVID-19 Worker Income Protection Benefit (the “Benefit”), which has also been extended until March 31, 2023. The changes do not impact unpaid IDEL prescribed under s.50.1(1.1) of the ESA, which will continue to be available to employees for as long as COVID-19 is designated as an “infectious disease” under Ontario Regulation 228/20. Unpaid IDEL is available if an employee is not performing their work for one or more of the reasons set out in that ESA section.

“Deemed” IDEL, which gave temporary relief to employers under the ESA from termination and severance provisions, ended on July 30, 2022, which is the end of the “COVID-19 period” under O Reg 228/20. This means that a temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to COVID-19 may trigger ESA termination and severance pay requirements.

Under subsection 50.1(1.2) of the ESA, employees are entitled to paid IDEL “if the employee will not be performing the duties of the employee’s position because of one or more of the following reasons related to a designated infectious disease:

1.  The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.

2.  The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.

3.  The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

4.  The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.

5.  The employee is providing care or support to an individual referred to in subsection (8) because,

i.  the individual is under individual medical investigation, supervision or treatment related to the designated infectious disease, or

ii.  the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.”

Employers may find more information for the Benefit to reimburse paid IDEL on the Ontario government website.

​Read the August 2022 Charity & NFP Law Update