Deemed Infectious Disease Emergency Leave available for longer
On December 9, 2021, the Ontario government extended the availability and duration of deemed Infectious Disease Emergency Leave (“Deemed 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 January 1, 2022, but will now remain in place until at least July 30, 2022, pursuant to O. Reg. 834/21.
This further extension means that non-unionized employees currently on a Deemed IDEL may remain on a Deemed IDEL throughout the first half of 2022, 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 an employee placed on a Deemed IDEL will not be considered to have been constructively dismissed for the purposes of the ESA, an employee placed on a Deemed IDEL could nonetheless claim constructive dismissal at common law. As discussed by Kalen Ingram, there are conflicting decisions from the Courts regarding this issue. Consequently, employers should remain cautious in reducing employees’ hours and/or wages if such reductions are not already established terms of employment.
Paid Infectious Disease Emergency Leave also available for longer
The Ontario government has also extended the availability of up to three days of paid leave for certain reasons relating to COVID-19 (“Paid IDEL”). This entitlement was previously set to end on December 31, 2021, but will now remain in place until at least July 31, 2022.
Employers are required to provide employees Paid IDEL where they are unable to attend work for certain reasons related to COVID-19 including, for example, getting tested and awaiting the results, and getting vaccinated. Entitlement to Paid IDEL does not renew on an annual basis; employees are only entitled to a total of three days regardless of this latest extension. Importantly, employees are not required to provide a medical note from a doctor or nurse as evidence in order to qualify for this leave.
As discussed by Greg Dobney, certain employers are eligible for reimbursement of the amounts they are required to pay to employees on Paid IDEL. 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.