The 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 certain circumstances. The Regulation is complicated, with lots of moving pieces. The Regulation does not apply to employees that are represented by a trade union.

I will be taking a closer look at the Reg. 228/20 in the coming days, but, on a first read:

  • An employee whose hours of work are temporarily reduced or eliminated by the employer for reasons related to the designated infectious disease (including COVID-19) is deemed to be on infectious disease emergency leave.
  • An employee whose hours of work are temporarily reduced or eliminated by the employer, or whose wages are temporarily reduced by the employer, for reasons related to the designated infectious disease during the COVID-19 period (defined as the period beginning on March 1, 2020 and ending on the date that is 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) is not laid off.
  • During the COVID-19 period:
    • A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to the designated infectious disease; or
    • a temporary reduction in an employee’s wages by the employer for reasons related to the designated infectious disease

will not be considered to be a constructive dismissal (termination) for purposes of the ESA.

The Regulation provides assistance in determining when and under what circumstances hours or wages are reduced.  In terms of reduced hours:

  1. If the employee has a regular work week, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than they worked in the last regular work week before March 1, 2020.
  2. If the employee does not have a regular work week, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than the average number of hours they worked per work week in the period of 12 consecutive work weeks that preceded March 1, 2020.
  3. If the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than they worked in the work week in which they worked the greatest number of hours.

An employee’s wages are considered to be reduced as follows:

  1. If the employee has a regular work week, the employee’s wages are considered to be reduced if the employee earns less regular wages in the work week than they did in the last regular work week before March 1, 2020.
  2. If the employee does not have a regular work week, the employee’s wages are considered to be reduced if the employee earns less regular wages than the average amount of regular wages they earned per work week in the period of 12 consecutive work weeks that preceded March 1, 2020.
  3. If the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee’s wages are considered to be reduced if the employee earns less regular wages than they did in the work week in which they earned the most regular wages.

Stay tuned for more information on this regulation.