Employment Standards Act Amendment – June 2, 2020

Reg. 228/20, Infectious Disease Emergency Leave

On May 29, 2020, the Ontario Government passed a Regulation under the Ontario Employment Standards Act, 2000 (the “ESA”) which confirms that, among other things, temporary reductions and/or changes in hours/wages due to COVID-19, or temporary layoffs due to COVID-19 that commenced on or after March 1, 2020 will not trigger constructive dismissal claims or the deemed termination and severance provisions under the ESA.

Instead the Regulation (O.Reg. 228/20) provides that instead of employees being placed on temporary layoff according to the current provisions of the ESA, they will be considered on “Infectious Disease Emergency Leave” during the “COVID-19 Period”. This ensures that employers are not obligated to terminate employees after the 13-week ESA temporary layoff periods have expired. This Regulation applies retroactively to March 1, 2020 and will end six (6) weeks after the State of Emergency ends.

Why did the Government pass this Regulation?

This development is very beneficial for Ontario employers, many of whom are struggling economically during the current pandemic. This Regulation, which was passed quietly on Friday evening, essentially confirms that the provincial government believes that the COVID-19 Pandemic will last far beyond the 13-week temporary layoff period under the ESA. By implementing the Regulation, they are providing greater flexibility to Ontario employers by mitigating the significant financial impact that would have resulted from the deemed terminations which would have occurred, if the temporary layoffs had exceeded the 13-week threshold for reasons beyond the control of employers.

Summary of Key Points in the Regulation

1. Where Hours/Wages are Reduced and not on Temporary Layoff

2. Where Hours/Wages are Reduced and not a Constructive Dismissal

 3. Employees are considered on Leave of Absence under the Emergency Leave: Declared Emergencies and Infectious Disease Emergencies (Regulation 228/20)

Practical Implications for Employers