Employers should take note of these changes to Ontario's Infectious Disease Emergency Leave

While the deemed Infectious Disease Emergency Leave ("IDEL") regulation expiry date has been extended several times throughout the COVID-19 pandemic, these temporary relief measures expired on July 30, 2022.[1]

The Ontario government created IDEL as a temporary relief measure from the termination and severance provisions under the Employment Standards Act, 2000 (the "ESA") in light of the COVID-19 pandemic. Under the new regulation, a non-unionized employee is "deemed" to be on IDEL if their employer temporarily reduces or eliminates their hours of work because of COVID-19. Employees on deemed IDEL are not considered to be laid off nor are they considered to be constructively dismissed[2] if their employer temporarily reduces or eliminates their hours.

Now that the IDEL regulation has expired, employees are no longer deemed to be on IDEL and the temporary layoff and constructive dismissal provisions under the ESA apply. The termination and severance rules under the ESA related to layoffs and constructive dismissals also apply. Consequently, the expiry of the deemed IDEL provisions means employers should start to consider how the expiry of deemed IDEL will impact employees.

Employers have several options available regarding employees who had remained deemed IDEL. In considering options, employers should keep in mind that any decision should be communicated to employees as soon as possible.

Employers that have work available should consider recalling employees to their previous positions. On the other hand, if an employer continues to experience a shortage in work, the employer could consider placing employees on a temporary layoff. Employees must be notified of the temporary layoff in writing, including the specific layoff period. The ESA's rules around temporary layoffs also resume with the clock having re-set July 31, 2022. Subject to certain exceptions, a temporary layoff can last for no more than 13 weeks in any period of 20 consecutive weeks. Beyond this period, the layoff will be deemed to be a termination of employment and the employer will be subject to the termination and severance provisions under the ESA.  Employers should note there may be common law and contractual implications that must be considered prior to placing employees on temporary layoff, and which should be discussed with counsel beforehand.  It is also possible that many employees abandoned their positions and accepted employment elsewhere after being placed on IDEL.

If an employer determines there is presently no work available or extending into the future, the employer can consider dismissing an employee on a without cause basis. However, employers terminating a large number of employees should remain cognizant of the mass termination provisions under the ESA which could be triggered. Furthermore, employers should ensure that they provide sufficient compensation to satisfy an employees statutory or contractual entitlements.

Lastly, employers should remain cautious in reducing or eliminating employee hours, as case law remains murky regarding common law claims for constructive dismissal.

Takeaway

Given the expiration of deemed IDEL, employers must respond accordingly. Should you have any questions regarding employer requirements regarding IDEL, consult with a Gowling WLG lawyer today.