Tushar Anandasagar
Partner
Article
On July 21, 2020, the province of Ontario gave Royal Assent to Bill 195, Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020 ("Bill 195"). Bill 195 came into force on July 24, 2020, bringing an end to the declared State of Emergency in Ontario.
Although the declared Emergency has ended, almost all orders made under Ontario's Emergency Management and Civil Protection Act ("EMCPA") will remain in effect as orders under Bill 195. Emergency orders currently in force under the EMCPA (as of July 24, 2020) will remain in effect for an initial period of thirty days. Existing emergency orders may be subject to extension by the province.
Bill 195 will have an impact on certain provisions under Ontario's Employment Standards Act, 2000 ("ESA"):
f. Requiring time away from work to care for their child whose school or day care was closed because of COVID-19.
Employees will continue to qualify for an IDEL for as long as COVID-19 remains a designated "infectious disease", as defined by the ESA. An employee's entitlement to an IDEL will not end on the expiry of the emergency orders, or at the expiry of six weeks from July 24, 2020 (see below discussion regarding Deemed IDEL), unless the ESA is further amended.
Because qualifying for a DEL depends upon the existence of a declared State of Emergency, an employee's entitlement to remain away from work on a job protected DEL would have ceased effective July 24, 2020.
However, when contemplating whether employees on expiring DELs are obligated to return to work, employers should be mindful of individual circumstances and the potential for overlap between DEL and IDEL. An employee who may have claimed entitlement to DEL because they were "providing care or assistance" to an immunocompromised child may also meet the entitlement criteria for job protected IDEL (refer to "Reasons an employee may take IDEL" on the Ministry's website). These issues should be dealt with on a case-by-case basis.
If employers cannot recall employees back to work or restore their wages by September 4, 2020, the standard temporary layoff rules under the ESA will be re-engaged, and employees can be terminated if laid off beyond the permitted temporary layoff timeframes under the ESA. The Employment Standards Branch of the Ministry of Labour has indicated that, starting September 4, 2020, employers may be able to temporarily lay off employees for up to 13 weeks in a 20-week period, which can be extended up to 35 weeks in a 52-week period.
Essentially, the first week of layoff would be the week after September 4, 2020; weeks that would otherwise have been "weeks of layoff" between March 1, 2020 and September 4, 2020 (i.e. the "COVID-19 Period") did not count toward the temporary layoff calculation because of Regulation 228/20.
Gowling WLG Focus
Ontario continues to transition more public health unit regions into Stage 3 of its Framework for Re-opening. Based on current public health indicators, it is likely that, by September 4, 2020, most employers across all regions will be legally permitted to re-open (subject to applicable, strict health and safety requirements).
However, many businesses experiencing substantial disruptions due to the COVID-19 pandemic will not be in a position to support full-scale re-opening / recall of all staff as of September 4, 2020, even if all restrictions are lifted.
If full-scale recall is impossible, and if permitted to do so by an employee's terms of employment (i.e. employment contract, offer letter, etc.), affected businesses may transition an employee from deemed IDEL to a temporary layoff effective September 4, 2020. However, unless the province offers further targeted relief to businesses that are incapable of recalling staff, employers will no longer be able to defer their termination-related liabilities under the ESA.
It remains to be seen whether the province will elect to offer further, targeted relief to employers most affected by the declared State of Emergency. For the time being, we will continue to monitor key developments relating to Bill 195, including any further legislative changes that may assist employers during the COVID-19 pandemic.
For any questions you may have about Bill 195, deemed IDEL, or any other matters related to COVID-19, the Gowling WLG Employment, Labour & Equalities Group would be pleased to assist. To find out more about our Group and how to contact a specific lawyer, click here.
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