The Ontario government had made several changes to the Employment Standards Act, 2000 (“ESA”) related to COVID-19 and the worldwide pandemic. A significant change was the introduction of job-protected infectious disease emergency leave or IDEL which applied during the “COVID period” of March 1, 2020, to July 30, 2022. IDEL allowed for both paid leave and unpaid leave.
Ontario Government Extends Paid Infectious Disease Emergency Leave to March 31, 2023
The Ontario government amended the ESA to ensure that eligible employees were able to take up to three days of paid leave because of COVID-19. To that end, the Ontario government has extended this paid infection disease emergency leave or IDEL to March 31, 2023. Paid leave under IDEL has been set to expire on July 31, 2022.
To remind our readers, the Ontario government had enacted unpaid IDEL in the same regulation. The purpose of unpaid leave under IDEL was to temporarily protect employers from claims of statutory notice or severance by employees under Ontario’s Employment Standards Act (“ESA”) when the employer has laid off the employee due to a downturn in business caused by the worldwide COVID-19 pandemic. Please read more of about this topic please read our blog entitled “Layoff due to COVID? Ontario’s Court of Appeal Needs to Provide Some Answers” here. This leave is set to expire on July 31, 2022 and has not been extended by the Ontario government.
What happens to unpaid Infection Disease Emergency Leave?
Supposedly everything reverts to the way it was before. According to the Ontario government, the ESA rules around constructive dismissal will return meaning that it may be constructive dismissal if the employer reduces or eliminates an employee’s wages or time regardless of whether those changes were due to COVID-19.
The Ontario government has also set out that the ESA’s rules around layoffs will resume and that the clock re-sets on July 31, 2022. For more information about layoffs please read our blog “Layoff, Layoffs, Layoffs” found here.
However, while IDEL is no longer available as of July 31, 2022, if certain conditions are met, employees may continue to eligible for unpaid IDEL if they are not performing the duties of their position for certain reasons because of COVID-19. Practically speaking this means that if you get sick because of COVID-19 and need to take a leave from work you can do so without fear of being fired. IDEL only relates to COVID-19 and not any other illness.
Things are not as simple as they look. We very much encourage any employer or employee to contact an employment lawyer to discuss how these issues may affect the workplace. For instance, this discussion around the ESA and IDEL has no bearing on the common law. There continues to be rather serious questions about about whether an employee can claim constructive dismissal under the common law when laid-off by their employer due to the COVID-19 pandemic. The Ontario Court of Appeal has still not provided adequate answers to these issues.
Secondly, with respect to layoffs, there remains confusion of what a layoff means among employer and employees alike. An employee cannot simply use the layoff provisions under the ESA to legally layoff an employee. The employer needs an enforceable contractual term in the employment agreement to layoff an employee. If an employer goes on to “lay off” an employee and there is no enforceable contractual term allowing for a layoff, the employee is constructively dismissed and would be entitled to both statutory and common law compensation as the employment contract is at an end.
It is important to understand that a layoff is not lawful even if the employer’s “layoff” is otherwise conducted in compliance with the ESA. This is because the right to layoff is found in contract, not statute. The ESA is, of course, important for those employers governed by it. However, it does not grant the right to layoff. Instead, it sets out the legal framework for how to do so if the employer has such a right in the first place.
This is a tough pill to swallow for many employers, but this is the current situation in Ontario. It is rarely, if ever, an issue in the unionized setting where a layoff is usually spelled out in the collective agreement.