Canada: Infectious Disease Emergency Leave Extended To January 1, 2022

On September 16, 2021, the Government of Ontario once again extended the period that the infectious disease emergency leave ("IDEL") will apply pursuant to Ontario Regulation 228/20: Infectious Disease Emergency Leave  under the Employment Standards Act, 2000 (the "ESA"). While previously scheduled to expire on September 25, 2021, IDEL will now extend to January 1, 2022. This recent extension signals the provincial government's efforts to assist employers in managing their workforces with the possibility of rising cases in the coming fall and winter months.

Our previous article provided an overview of IDEL. Put simply, under the IDEL Regulation, non-unionized employees whose wages or hours are reduced or eliminated due to COVID-19 are not considered to have been statutorily laid off or constructively dismissed under the ESA. Instead, such employees are deemed to be on job-protected leave.

Employers should recall that the IDEL Regulation does not necessarily protect against a common law claim of constructive dismissal in the absence of contractual language allowing the employer to temporarily lay off an employee. In our most recent article on IDEL, we provided an overview of conflicting case law on this topic that has emerged as a result of the IDEL Regulation. These cases have yet to be considered by the Ontario Court of Appeal and, as such, further clarity and perhaps finality is expected in the coming months.

Assuming another extension is not provided beyond January 1, 2022, the applicable rules of the ESA pertaining to constructive dismissal and temporary layoffs will resume on that date. Therefore, an employee's "temporary layoff clock" will reset on January 2, 2022.¹

We continue to encourage our clients to exercise caution in making their decisions with respect to temporary layoffs as we continue to follow these developments closely.

Footnote

1 COVID-19: temporary changes to ESA rules at End of the COVID-19 Period.

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