The Ontario government recently enacted Ontario Regulation 228/20, which created an "infectious disease emergency leave" for employees who are off work due to COVID-19. As a result of a very recent regulation, Ontario Regulation 765/20, the period for this infectious disease emergency leave has been extended until July 3, 2021.
By way of background, Ontario Regulation 228/20 under the Employment Standards Act, 2000 (ESA), converted any layoff of an Ontario employee into an infectious disease emergency leave if the reason for the layoff was related to COVID-19 or its economic consequences. As we previously reported, for non-union employers and employees, Ontario Regulation 228/20 stipulates that:
- All employees whose hours or wages have been temporarily reduced are deemed not to have been discharged (or constructively dismissed) under the ESA.
- All employees who have been laid off (either completely, or by
having their hours reduced by more than 50 percent in one week) due
to COVID-19 are deemed not to have been laid off; instead, they are
deemed to be on a leave of absence.
- This means that employers will not need to worry about the time limits for a temporary layoff under the ESA.
- Any claims filed with the Ministry of Labour alleging constructive dismissal due to a temporary reduction in hours or wages during the COVID-19 period are automatically dismissed.
As of the last regulation passed by Ontario amending Ontario Regulation 228/20, Ontario Regulation 492/20, the COVID-19 period during which these rules were to apply, was to end on January 2, 2021. As a result of Ontario Regulation 765/20, the period for these rules (and other rules under Ontario Regulation 228/20) has been extended until July 3, 2021.
This reflects what appears to be an acceptance by the provincial government that the economic consequences of COVID-19 and the impact on Ontario's employers and workforce will continue until at least the summer of 2021. This regulation also provides a measure of protection to employers impacted by COVID-19 from complaints to the Ontario Ministry of Labour regarding layoffs, reductions in hours of work or pay, and other claims that could have been brought after January 2, 2021, had Ontario Regulation 765/20 not been enacted.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on the firm's Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm's webinar and podcast programs.
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