The Infectious Disease Emergency Leave provisions initially slated to end on September 4, 2020, six weeks after the State of Emergency ended in Ontario, have been further extended until January 2, 2021.
On May 29, 2020, the Ontario Government introduced O. Reg. 228/20: Infectious Disease Emergency Leave (‘IDEL”). This temporary provision under the Employment Standards Act, 2000 (ESA) was intended to provide more flexibility to employers to ensure that non-unionized employees whose hours or wages have been reduced between March 1, 2020 and September 4, 2020 due to COVID-19 (“the COVID 19 period”), are deemed to be on an IDEL, an unpaid leave of absence as opposed to a temporary layoff. This period has now been extended, and as of now, runs from March 1, 2020 until January 2, 2021.
The ESA contains restrictions that limit the length of a temporary layoff, after which employers become obligated to provide employees with their termination entitlements, such as pay in lieu of notice and severance pay. A deemed IDEL essentially freezes the clock, and time laid off during this period does not apply towards these time limitations.
Practical Considerations for Employers:
- Employees laid off between March 1, 2020 and September 2, 2021 due to COVID-19 are now on a deemed IDEL and exempt from the layoff time limitations under the ESA.
- Employees who have had their wages or hours reduced are unable to claim a constructive dismissal under the ESA.
- Employees who are terminated during this time are still owed termination pay, severance pay, and potentially additional notice amounts at common law.
- Time laid off on deemed or voluntary IDEL still counts towards an employee’s total length of service and will impact employer severance obligations upon termination.
While the extension provides some much-needed relief, employers are still urged to remain cautious in crafting their return to work plans, as these provisions have not yet been considered by the courts.
On a final note, the release, found here, briefly addresses those who have taken a voluntary IDEL. These individuals, including those who have decided not to send their children back to school due to safety concerns surrounding COVID-19, continue to have job protection through the Infectious Disease Emergency Leave provisions found in the ESA, a different type of IDEL than a deemed IDEL.