Ontario Amends ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals by Extending COVID-19 Period

By Matthew De Lio & Jeremy Hann on September 16, 2020

The Ontario Government amended a previous regulation to extend deemed infectious disease emergency leave (“IDEL”) under the Employment Standards Act, 2000 (the “ESA”) until January 2, 2021.

This is an update to our previous blog post, Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals, where, on May 29, 2020, the Ontario Government filed a new regulation changing the rules regarding employee eligibility for IDEL, temporary layoffs and constructive dismissals under the ESA. The regulation retroactively “deems” non-union employees who were not performing their duties, working reduced hours, or receiving reduced wages (at the employer’s behest) to be on IDEL.

Previously, the regulation dealt with the time period beginning March 1, 2020 and ending “six weeks after the declared emergency ends.” The Government has called this the “COVID-19 Period.” However, the Ontario Government has now extended this “COVID-19 Period” to January 2, 2021.

This means that the deemed IDEL is also extended until January 2, 2021, and employees who were on a “temporary layoff” continue to be on deemed IDEL until that time (unless they are recalled before then).

Employers might wonder whether this amendment prevents them from dismissing non-unionized employees that are currently on temporary layoff/ deemed IDEL.

Employers in Ontario cannot punish an employee for taking a statutory leave, including IDEL. Furthermore, since IDEL is a job-protected leave (similar to pregnancy/parental or other statutory leaves) employees are entitled to return to their job afterwards, if it still exists (or a comparable one if it does not). Just like other statutory leaves, however, employers may still dismiss employees if the employer ends employment solely for reasons unrelated to the leave. This means that the employer may not be precluded from ending an employee’s employment in cases of a straight position elimination or where the employee has been selected, for financial reasons, as part of a group, after the employer has conducted a fair, objective and non-discriminatory selection process.

Please contact your Baker McKenzie attorney for more information.

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