The Ontario government has temporarily changed its employment standards legislation to help employers avoid laying off employees during the COVID-19 pandemic.
The Infectious Disease Emergency Leave, or Ontario Regulation 228/20, is an amendment to the province’s Employment Standards Act (ESA). Under this amendment, nonunionized employees in Ontario working fewer hours because of COVID-19 will be placed on unpaid, job-protected leave rather than being laid off temporarily, explained Hilary Page, a lawyer at SpringLaw in Toronto.
Before the amendment, the ESA required businesses to officially terminate and then pay severance to employees who had been laid off for 13 weeks—or 35 weeks if benefits or other payments continued.
Ontario’s Minister of Labor Monte McNaughton said in a statement that the government had to step in to make sure workers have jobs to return to. The amendment will ensure that businesses are not forced to terminate employees after their temporary layoff periods have expired.
“The government is taking into account the realities of the pandemic,” said Jessyca Greenwood, a lawyer at SpringLaw in Toronto.
“Employers now will not need to worry about the time limits under the ESA,” explained Meaghen Russell, an attorney with Dentons in Toronto. “Instead of a temporary layoff, workers are now on a leave of absence. The Infectious Disease Emergency Leave will last as long as the COVID-19 period.”
In Ontario, the COVID-19 period is from March 1 until six weeks after the government lifts the province’s emergency order, which is currently set to expire July 22. Therefore, the regulation would be in effect until at least Sept. 2.
Ontario employers need to keep track of these timelines, Greenwood said. After the COVID-19 period, employers could then institute the pre-Infectious Disease Emergency Leave regulation and keep employees off work for longer.
COVID-19 Support for Ontario Employees
Nonunionized Ontario employees also remain eligible for federal emergency income support programs like the Canada Emergency Response Benefit (CERB).
Employees can take declared emergency leave if they are unable to perform their job duties for reasons related to COVID-19. These reasons include the following:
- Personal illness from the coronavirus, including medical investigation, supervision or treatment related to the infectious disease.
- Caregiver duties for family members, including providing day care and home schooling, along with caring for a sick spouse, children and parents.
- 14-day quarantine because of illness, exposure and/or travel.
Employees who take infectious disease emergency leave are entitled to the same rights as employees who take parental leave.
There is no specified limit to the number of days an employee can be on infectious disease emergency leave. If an employee takes leave, he or she should provide notice, ideally in writing, to the employer, Greenwood said, adding that ”the leave doesn’t have to be in a consecutive time frame.”
The employee will not lose the right to take leave if he or she fails to inform the employer, though, Greenwood noted.
An employer may require an employee to provide reasonable evidence for the leave but is prohibited from asking for a doctor’s note, Page said.
Human resource professionals should document that the employee is out on infectious disease emergency leave under the ESA, Russell noted. The ESA does not require employers to pay employees while they are on declared emergency leave.
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The Impact on Constructive Dismissals
Before May 29, many employees in Ontario were laid off unlawfully or had their pay or hours cut, which normally would entitle an employee to assert a forced or “constructive” dismissal claim, Page said. The Infectious Disease Emergency Leave amendment removes this right because temporary wage and hour reductions do not constitute constructive dismissals under the current pandemic situation.
“This regulation says there is no constructive dismissal for these reasons during the COVID-19 period,” Page explained. “Employees’ previous constructive dismissal complaints to the Ministry of Labor under the ESA have been canceled.”
Russell added that the regulation also does not apply to employees who quit their jobs before May 29.
A constructive dismissal claim could still go forward under common law, Page noted.
Temporary Layoffs in Other Provinces
COVID-19 has changed the way provincial governments have regulated temporary layoffs, as employees have had work hours cut or have lost their jobs. Before the pandemic, temporary layoffs made sense to employers, experts explained, because they could minimize payroll costs while preserving the employment relationship.
According to Statistics Canada’s May labor force survey, around 2 in 5 employees in Canada have worked reduced hours since the beginning of the pandemic.
In Ontario—the province with Canada’s largest job market—approximately 1 million jobs have been lost since mid-March. Statistics Canada reported that Ontario’s unemployment rate in May was 13.6 percent.
“Ontario decided to do [temporary layoffs] differently compared [to] other provinces across Canada,” noted Larysa Workewych, an attorney with Dentons in Toronto.
In Quebec, a temporary layoff must not exceed six months or else it will be deemed a termination. The laid-off employee may then be entitled to termination pay.
Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.