UPDATE:  On September 3, 2020 the Ontario Government extended the deeming effect of the Regulation to January 2, 2021.  As a result the leave of absence is extended until January 2, 2021.  The temporary layoff clock remains frozen for purposes of the Employment Standards Act, 2000, for now at least.  This 11th hour change really should have been announced sooner, but at least it provides some temporary relief.

Employers who have temporarily laid off employees as a result of COVID-19 are going to have to make some decisions in the coming weeks.

As reported in the COVID-19 Labour & Employment Alert #3, the Ontario Government published Reg. 228/20 – Infectious Disease Emergency Leave and, in so doing, provided considerable relief to employers from the termination provisions in the Employment Standards Act, 2000.

In brief, Reg. 228/20 converted certain temporary layoffs to job protected infectious disease emergency leave (“Deemed IDEL”) during the “COVID-19 Period”, which is retroactive to March 1, 2020, and ends six weeks following the end of Ontario’s provincial declaration of emergency.

Well, on July 24, 2020 Bill 195 Reopening Ontario (A Flexible Response to COVID-19) Act 2020, came into effect, bringing an end to the COVID-19 declared provincial state of emergency under the Emergency Management and Civil Protection Act.

As a result, the Deemed IDEL relief offered under Reg. 118/20 expires on September 4, 2020 and the usual temporary layoff rules and other rules (i.e. reduction in pay and hours) will apply to employees who are not returned to work.

It should also be noted that as a result of Bill 195 the declared state of emergency under the Emergency Management and Civil Protection Act ended on July 24, 2020 and, as such, any entitlement to a DEL ended on that date.

That being said, an employee on a DEL may, if they qualify, be eligible to an infectious disease emergency leave (“IDEL”). At the outset of the pandemic, the government passed Bill 186 Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 which allows certain employees to take an IDEL so long as COVID-19 remains a designated infectious disease and the employee falls into one of the listed categories in the regulations. See COVID-19 Job Protection Leave.

Conclusion

The clock is ticking on employers that laid off employees (or reduced their hours or pay) as a result of COVID-19 and are unable to return them to pre-pandemic work, hours and wages, then the usual ESA rules will apply. The Deemed IDEL ends as of September 4, 2020. DEL ended on July 24, 2020 and IDEL continues to apply to eligible employees.

These changes could have consequences for the employer unless further amendments to the legislation is passed.

Disclaimer