Changes to Layoffs in Ontario: What Does This Mean for Your Business?
Infectious Disease Emergency Leave (IDEL) is a new job-protected leave that applies retroactively to all non-unionized employees whose hours were temporarily reduced or eliminated on or after March 1, 2020, as a result of COVID-19. This leave allows employers the opportunity to maintain the employment relationship with their employees. The leave does not apply to employees who have already been dismissed, permanently laid off, or who have already been given a notice of termination.
Employees will remain on this leave until they no longer meet the eligibility criteria. The only disease for which infectious disease emergency leave may be taken at this time is COVID-19. Although the ESA was amended to include infectious disease emergency leave on March 19, 2020, the leave entitlements for COVID-19 are retroactive to January 25, 2020 and have no end date. An employee is entitled to take this leave so long as the conditions set out below are met.
Note: infectious disease emergency leave remains available to employees covered by the ESA after the end of the COVID-19 period on July 3, 2021.
This means that the COVID-19 period ends on July 3, 2021, and non-unionized employees will no longer be deemed to be on infectious disease emergency leave by the regulation made by the government. However, if certain conditions are met, unionized and non-unionized employees may continue to be eligible for infectious disease emergency leave if they are not performing the duties of their position for certain reasons related to COVID-19.
This leave acts differently from a temporary layoff in that there is no termination requirement or constructive dismissal risk under the Employment Standards Act (ESA). This means that if an employee is laid off or if their hours and/or wages are temporarily reduced for COVID-19-related reasons during the IDEL, these actions will not constitute a constructive dismissal under the ESA. Any layoff that has exceeded the length of a temporary layoff prior to May 29, 2020, will still be considered a termination under the ESA. It is important to recognize that because the IDEL falls under the ESA, it does not automatically invalidate common law rules relating to constructive dismissal.
Generally under a job-protected ESA leave, employees are entitled to benefit continuation throughout the duration of the leave. However, under the IDEL, any employee whose benefits have stopped prior to May 29, 2020, will not be required restart their benefit entitlements. Reach out to your benefit provider to gather more information on benefit continuation.
If you have employees on a leave or layoff, ensure that they are kept in the loop with appropriate company communications, and ensure that you are keeping in contact with them on a fairly regular basis. Employees who are not actively working still need to be treated as a part of the team and included in engagement efforts.
Reach out to DJB HR Advisory today to be provided with consultation for COVID-19 best practices and processes.
More articles related to COVID-19: Business Resource Centre
The information contained in this article does not constitute legal or other professional advice. This article is current as of June 1, 2020 and applies only to Ontario, Canada.
Glossary of Terms
Common Law – Is case law which is a body of unwritten laws based on legal precedents established by the courts.
Constructive Dismissal – When an employer makes a substantial change to the terms of an employee’s employment (e.g. significantly reducing compensation, demotion, toxic work environment, etc.) without the employee’s consent or demonstrates that they intend to no longer be bound by the terms of the employment contract then the employee has the option of treating their employment as having been terminated.
Ontario’s Emergency Order – Declaration of Emergency under the Emergency Management and Civil Protection Act. This allows the government to use every tool at its disposal to protect the health and safety of the people of Ontario during the COVID-19 pandemic.
Working Notice – When an employer tells an employee that their employment will end after a given date and the employee is required to continue working for the duration of the notice period.