The Ontario Government has introduced a number of leaves and programs for both employees and employers throughout the COVID-19 pandemic. One of these, the Ontario Income Protection Benefit, gave employees up to three days of paid infectious disease emergency leave ("IDEL") as long as their absence was for reasons related to COVID-19. The Income Protection Benefit was set to end on July 30, 2022; however, the Ontario government announced on July 20, 2022, that it will be extending this benefit to March 31, 2023.
Practically speaking, this means that employers must continue to give eligible employees up to three days of paid IDEL where their absence is for reasons related to COVID-19. The program had a variety of qualifying conditions and special provisions if employees were also able to claim paid sick days under their employment contract—for more information on the details of the program, including how employers are reimbursed for some of the costs of the paid leave, please see our earlier blog on the subject here.
Another measure was the automatic extension of unpaid IDEL to employees whose hours of work were reduced or eliminated for reasons related to COVID-19. For these employees, their absence from work was not considered a layoff for the purposes of the Employment Standards Act, 2000 (the "ESA") and was, instead, legally considered a protected leave of absence. It bears mentioning that there continues to be legal controversy where this type of IDEL protects employers from constructive dismissal claims stemming from decisions to layoff employees due to COVID-19 and the law is unsettled; what is certain, however, is that where employers laid off employees due to COVID-19, and those layoffs were permitted under the employee's employment agreements, the ESA automatically placed those employees on a leave of absence rather than a layoff.
This unpaid IDEL that was intended to replace layoffs was originally designed to continue until September 4, 2020, but that date was continually pushed back as the course of the pandemic continued. Now, the Government has announced that any employees on IDEL due to a reduction or elimination of their hours will convert to a layoff effective July 30, 2022. After that date (i.e., on July 31), those same employees will convert to a traditional layoff under the ESA. Under the ESA, temporary layoffs are normally allowed up to 13 weeks in any period of 20 weeks or an extended period of 35 weeks in any period of 52 weeks if some payment or benefit is continued. At the end of the 13/35 weeks, if the employee is not recalled, the ESA normally deems employment to have been terminated as of the first day of layoff. As a result, employers will want to review the status of any employee who are still on IDEL due to a reduction of hours prior to July 31, 2022 to consider the best course of action in the circumstances.
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