On May 29, 2020, the Ontario government published O. Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (the "ESA"). This Regulation temporarily amends the treatment of layoffs under the ESA for the duration of the "COVID-19 period" initially defined as the period from March 1, 2020 until six (6) weeks after Ontario's emergency order is lifted (discussed in more detail here). On July 24, 2020, Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 came into force, and the declared emergency in Ontario came to an end. This started the six (6) week countdown until the end of the COVID-19 period and the return of the usual rules regarding temporary layoffs under the ESA. As our regular readers will be well aware, this countdown was set to end on September 4, 2020.

The Ontario government has now, however, extended the COVID-19 period until January 2, 2021. For employers who have accelerated recall decisions in consideration of the September 4, 2020 deadline, this news may come as a welcome reprieve. Conversely, employers who have been waiting out job-protected Infectious Disease Emergency Leave to move forward with planned termination may need to remain in a holding pattern until the new year.

During the COVID-19 period (March 1, 2020 to January 2, 2021):

  • a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 is deemed to be on a job-protected infectious disease emergency leave;
  • a non-unionized employee is not considered to be laid off if their employer temporarily reduces or eliminates their hours of work or wages for reasons related to COVID-19; and
  • a non-unionized employee is not considered to be constructively dismissed under the ESA if their employer temporarily reduces or eliminates their hours of work or wages for reasons related to COVID-19.

Beginning on January 3, 2021:

  • employees will no longer be deemed  to be on infectious disease emergency leave; 
  • the ESA's regular rules around constructive dismissal resume. This means a significant reduction or elimination of an employee's hours of work or wages may constitute a constructive dismissal, even if it was done for reasons related to COVID-19); and
  • the ESA's regular rules around temporary layoff resume. For practical purposes, an employee's temporary layoff clock resets on January 3, 2021.

The lawyers at CCPartners are available to assist you in planning for the return of your workforce to ensure that you are prepared to operate safely and to help ensure that you meet all of your obligations. Click HERE for a link to CCP's COVID-19 Blog series, catch our webinars and podcasts on YouTube and SoundCloud, or wherever you listen to podcasts, or contact any of our team members to answer you workplace questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.