On September 16, 2021, the Ontario government further 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 previously set to end on September 25, 2021, but will now remain in place until at least January 1, 2022.

First introduced in May of last year, O. Reg. 228/20 (the “IDEL Regulation”) has provided significant relief to employers that have had to temporarily reduce or eliminate the hours of work or wages of non-unionized employees as a result of the COVID-19 pandemic. The IDEL Regulationdeems non-unionized employees whose wages or hours of work were temporarily reduced or eliminated by an 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. The government has repeatedly pushed back the end date and, with this most recent extension, the “COVID-19 period” is now set to end on January 1, 2022, pursuant to O. Reg. 650/21.

This further extension means that non-unionized employees currently on a deemed IDEL may remain on an IDEL throughout the remainder of 2021, and employers do 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 while the IDEL Regulation states that an employee placed on an IDEL will not be considered to have been constructively dismissed for the purposes of the ESA, an employee placed on IDEL could nonetheless claim constructive dismissal at common law. As discussed by Kalen Ingram, there are conflicting decisions from the Courts regarding the impact of the IDEL Regulation on civil constructive dismissal claims. Consequently, employers should remain cautious in reducing employees’ hours and/or wages if such reductions are not already established terms of employment.

Please do not hesitate to reach out to us with any questions on these matters.

Keep safe.

The Labour & Employment Team at Cunningham Swan.