Infectious Disease Emergency Leave is Available for Longer
On May 29, 2021, 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 July 3, 2021 but will now remain in place until at least September 25, 2021.
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 since extended this period until January 2, 2021, and subsequently July 3, 2021. In this third extension, the “COVID-19 period” is now set to end on September 25, 2021, pursuant to O. Reg. 412/21.
This further extension means that non-unionized employees currently on a deemed IDEL may remain on an IDEL over the course of the summer, 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 the IDEL Regulation only explicitly amends the ESA rules concerning temporary layoffs and constructive dismissal. Consequently, despite the continued protection afforded with respect to the ESA and complaints to the Ministry of Labour, an employee placed on IDEL could nonetheless claim constructive dismissal at common law. There are conflicting decisions regarding the impact of the IDEL Regulation on civil constructive dismissal claims, and Kalen Ingram will be reviewing the emerging case law on this issue, among others, in an upcoming blog post. For the time being, employers should remain cautious in reducing employees’ hours and/or wages despite the continued availability of deemed IDEL if such reductions are not already established terms of employment.
Employers May Now Apply for Reimbursement of New “Infectious Disease Emergency Leave Pay”
As noted in our previous blog post, certain employers are eligible for reimbursement of the amounts they are required to pay to employees for the recently introduced three days of paid leave for reasons related to COVID-19. Applications for reimbursement under the “COVID-19 Worker Income Protection Benefit Program” can now be submitted online here.
Please do not hesitate to reach out to us with any questions on these matters.
The Labour & Employment Team at Cunningham Swan.