Government extends ESA amendments related to COVID-19

Liam McMunagle
Posted December 18, 2020 Category: News & Updates
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Yesterday, the Ontario government extended the availability and duration of deemed Infectious Disease Emergency Leave (“IDEL”) and related relief from the layoff and termination provisions under the Employment Standards Act, 2000 (the “ESA”). These measures were set to end on January 2, 2021 but will now remain in place until at least July 3, 2021.

First announced in late May, O. Reg. 228/20 (the “IDEL Regulation”) has provided significant relief to employers that have had to lay off non-unionized employees or reduce their hours of work or wages as a result of the COVID-19 pandemic. The IDEL Regulation deems non-unionized employees whose wages or hours of work were temporarily reduced or eliminated by the employer for reasons related to COVID-19 to be on an IDEL (and not temporarily laid off or constructively dismissed under the ESA) for the duration of the “COVID-19 period”.

The “COVID-19 period” began March 1, 2020 and originally ran until September 4, 2020, six weeks after Ontario’s emergency declaration ended. However, on the very day it was supposed to end, the government extended the “COVID-19 period” to January 2, 2021. Now, with a bit more advance warning, the government has extended the “COVID-19 period” until July 3, 2021 pursuant to O. Reg. 765/20.

This further extension means that non-unionized employees currently on a deemed IDEL may continue to be on an IDEL for much longer and employers will not need to place these employees on temporary layoff or terminate their employment in the near future. Employers also have an extended opportunity to temporarily reduce or eliminate hours or reduce wages without being deemed to have temporarily laid off or constructively dismissed these employees under the ESA.

Employers should note, however, that the IDEL Regulation only amends the ESA rules concerning temporary layoffs and constructive dismissal. It remains unclear whether an employee who is placed on IDEL may nonetheless successfully claim constructive dismissal at common law. Consequently, employers should remain cautious in reducing employees’ hours and/or wages despite the continued availability of deemed IDEL. With this said, the latest extension should prove a welcome relief to many employers who were otherwise facing difficult decisions immediately entering the new year.

Stay safe and Happy Holidays.

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Liam McMunagle
Posted December 18, 2020 Category: News & Updates

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