The Expiry of the Emergency Declaration and How it Impacts Employers

Liam McMunagle
Posted July 23, 2020 Category: Businesses
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Today’s post is focused on the provincial government’s new Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the Reopening Ontario Act” or simply the “Act”).

The Act was first introduced on July 7. At the time of our most recent blog post, the Act was at 2nd reading. On Tuesday, July 21, the Act received Royal Assent, just before the Ontario legislature adjourned until September 14.

In short, the Act maintains existing emergency orders and allows for the extension and amendment of some of these orders, even after the emergency declaration is lifted.  The Act confirms that the declaration will expire on Friday July 24 (tomorrow).

Consequences For Employers

The expiry of the declaration has significant consequences for employers.  Employees’ entitlements to a declared emergency leave (“DEL”) under the Employment Standards Act (“ESA”) will end on Saturday, July 25. More importantly, employees that were deemed to be on an Infectious Disease Emergency Leave (“IDEL”) due to a temporary elimination or reduction of their hours and/or wages because of COVID-19 will no longer be deemed to be on this leave as of Friday, September 4 (i.e., six weeks following the end of the emergency declaration).  The ending of these leaves will require some decision-making on the part of employers. 

As discussed in a previous blog post, Ontario Regulation 228/20 made under the ESA deemed employees in Ontario who were subject to a temporary elimination or reduction of their hours/wages due to COVID-19 to be on IDEL (and not temporarily laid off or constructively dismissed under the ESA).  This Regulation was enacted about 12 weeks into the COVID-19 pandemic here in Ontario, and right before many employees who had been put on 13-week temporary layoffs were going to hit that 13-week mark.  This was a relief for many employers, as it avoided the deemed terminations that would then have occurred.  The Regulation, however, specified that the deemed IDEL would only remain in place until up to six weeks after the emergency declaration ends.

With the emergency declaration ending on July 24, if an employer reduced employee hours or wages for reasons related to COVID-19, impacted employees will no longer be deemed to be on IDEL as of September 4 (the Friday before Labour Day).

As mentioned in our most recent blog post, employers will then have to consider what steps they intend to take with these employees, including (but not limited to):

  • whether to keep these employees off work on a temporary layoff (if the employer has the contractual right to lay off workers);
  • whether to return employees to their pre-COVID work, potentially by accessing the newly reconfigured Canada Emergency Wage Subsidy (CEWS); or
  • whether these employees continue to be entitled to the IDEL, potentially due to childcare or elder care responsibilities, or other ESA leaves.

We strongly encourage employers to begin planning for this transition.

Other notable aspects of the Act are:

Extensions

Despite terminating the provincial declaration of emergency, the Act continues virtually all existing emergency orders made under the Emergency Management and Civil Protection Act (“EMCPA”) and converts them to valid and effective orders under this new Act.

These continued emergency orders will automatically cease to apply thirty days from July 24 but may be extended by the Lieutenant Governor for additional periods of up to thirty days each.  These 30-day extensions can continue for one year from July 24, 2020 unless further extended by the Legislature on the recommendation of the Premier.

Some of you, for example, may be affected by the various work deployment orders, and so will be affected by any extensions.

Amendments

In addition to the power to extend the orders made, the Act also gives the power to amend these orders.

Other than to address transitional matters, however, continued orders may only be amended if the amendment:

  1. requires persons to act in compliance with any advice, recommendation or instruction of a public health official; or
  1. relates to one or more of the following subject matters:
  • closing or regulating any place, whether public or private;
  • providing for rules or practices relating to workplaces or their management;
  • providing for rules authorizing the person responsible for a workplace to identify staffing priorities or develop, modify and implement labour redeployment plans, or rules or practices relating to the workplace or its management; or
  • prohibiting or regulating gatherings or organized public events.

The Act specifically identifies several emergency orders that may not be amended; however, none of these orders relate to work redeployment measures or the phased reopening of Ontario businesses.

As with the power to extend, the power to amend an emergency order ceases after one year from July 24 unless it is extended by the Legislature on the recommendation of the Premier.

Revocation

The Act also provides the Lieutenant Governor the power to revoke emergency orders continued under the Act at any time.

Please do not hesitate to reach out to us with any questions on this matter.

Keep safe.

The Labour & Employment Team at Cunningham Swan.

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Liam McMunagle
Posted July 23, 2020 Category: Businesses

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