Skip to content

Menu

ChannelsPublishersSubscribe
LexBlog, Inc. logo
LexBlog, Inc. logo
ProductsSub-MenuBlogsPortalsTwentySyndicationMicrositesResource Center
Join
Search
Close
Join the Movement. Blog 4 Good

Deemed Infectious Disease Emergency Leave Further Extended to July 3, 2021

By Andrew Shaw, Ajanthana Anandarajah & Alessandra Fusco on December 22, 2020
EmailTweetLikeLinkedIn

Last week, the Ontario Government amended O.Reg. 228/20 to extend deemed infectious disease emergency leave (“IDEL”) under the Employment Standards Act, 2000 (the “ESA“) from January 2, 2021 to July 3, 2021.

This is a second update to our previous blog post on O.Reg. 228/20, Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals, which changed the rules regarding employee eligibility for IDEL, temporary layoffs and constructive dismissals under the ESA. Under the regulation, non-union employees who were not performing their duties, working reduced hours, or receiving reduced wages (at the employer’s discretion) were deemed to be on IDEL for the duration of the COVID-19 period.

The regulation defined the “COVID-19 period” as beginning on March 1, 2020 and was last expected to expire on January 2, 2021. As a result of this new amendment, the COVID-19 period will now expire on July 3, 2021. This means that non-union employees who were not performing their duties, working reduced hours, or receiving reduced wages can remain on deemed IDEL until that time (unless they are recalled before then). Further, any future temporary reductions in hours or wages will not constitute a layoff or a constructive dismissal under the ESA. That is, until July 4, 2021, when the standard rules are expected to be re-engaged.

Concurrently, the Ontario government filed a new regulation under the ESA introducing temporary relief measures for the hospitality, tourism, convention, and trade show industries. Under O.Reg. 764/20, employers and unions in the enumerated industries can negotiate an alternative to putting termination and severance pay into trust for temporarily laid off employees. Where an employer and union agree to apply the new regulation:

  • The union will be able to elect to retain recall rights for some or all of the employees it represents, and the union’s election will be binding on the affected employees unless such employees had already elected to receive their termination and severance payment entitlements under the ESA;
  • Where the union has elected to retain recall rights on behalf of an employee, that employee will not be permitted to renounce the right to be recalled prior to a date agreed to by the employer and the union; and
  • Where the union has elected to retain recall rights on behalf of its members, the union will similarly not be permitted to renounce the right to be recalled on the employee’s behalf.

This arrangement is expected to provide financial relief that would allow employers to remain operational and ultimately preserve jobs. As with many of the measures introduced during the COVID-19 pandemic, the ability to delay termination and severance pay obligations under this regulation is temporary and expected to expire on December 17, 2021.

Key Takeaways

The noted amendments are welcome news for employers impacted by COVID-19. Employers now have increased flexibility and additional time to recover and implement measures to sustain operations going forward.

In the coming months, employers should think about whether they will be able to recall employees who are on a deemed IDEL. If employers cannot recall employees back to work or restore their hours and wages by July 4, 2021, the standard ESA rules are expected to apply. Employers would be able temporarily layoff employees who are currently on IDEL starting July 4, 2021, but should ensure they understand the implications of such measures, including the risk of deemed employment terminations and constructive dismissal claims.

Further, unionized employers in the hospitality, tourism, convention, and trade show industries should consider whether they could benefit from temporarily deferring termination and severance obligations for laid off employees. Employers should consult legal counsel to evaluate the risks before engaging in such discussions with unions.

Many thanks to Dorna Zaboli for her assistance in drafting this article.

Photo of Andrew Shaw Andrew Shaw

Andrew Shaw has a general and diverse labour and employment practice. Andrew regularly represents employers in the Ontario Superior Court of Justice and before various labour, employment and human rights related administrative tribunals. In particular, his practice is focused on providing his clients…

Andrew Shaw has a general and diverse labour and employment practice. Andrew regularly represents employers in the Ontario Superior Court of Justice and before various labour, employment and human rights related administrative tribunals. In particular, his practice is focused on providing his clients with strategic advice regarding various matters including employment standards, labour arbitration, collective bargaining, human rights, wrongful dismissals and occupational health and safety. Andrew also regularly assists clients with reviewing and updating their workplace policies and procedures, as well as providing the training required to ensure these policies are properly implemented and applied. Prior to attending law school, Andrew held labour relations positions at both private and public sector companies. In these roles, he managed the processing of grievances to an appropriate resolution, assisted internal clients with the interpretation of employment-related legislation, and provided counsel to senior management as required.

Read more about Andrew ShawEmail Andrew's Linkedin Profile
Show more Show less
Photo of Ajanthana Anandarajah Ajanthana Anandarajah

Ajanthana Anandarajah advises employers in a wide range of labour and employment law matters, providing practical legal and business advice to both domestic and international private and public sector clients. Ajanthana has appeared before administrative tribunals and the Ontario Court of Justice in

…

Ajanthana Anandarajah advises employers in a wide range of labour and employment law matters, providing practical legal and business advice to both domestic and international private and public sector clients. Ajanthana has appeared before administrative tribunals and the Ontario Court of Justice in Ontario. She joined the Firm in 2019, after completing her summer and articling term with the Ministry of the Attorney General, Ministry of Labour.

Read more about Ajanthana AnandarajahEmail Ajanthana's Linkedin Profile
Show more Show less
Photo of Alessandra Fusco Alessandra Fusco
Read more about Alessandra FuscoEmail
  • Posted in:
    Employment & Labor, International
  • Blog:
    Canadian Labour and Employment Law
  • Organization:
    Baker McKenzie
  • Article: View Original Source

Stay Connected

Facebook LinkedIn Twitter RSS
Real Lawyers

Company

  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service

Products

  • Products
  • Blogs
  • Portals
  • Twenty
  • Syndication
  • Microsites

Support

  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center

New to the Network

  • Startup GC Business Law Insights
  • New York Surrogate's Court Monitor
  • NC Legal Landscapes
  • McGeorge Legal Clinics
  • International Trade Law Compass
Copyright © 2021, LexBlog, Inc. All Rights Reserved.
Powered By LexBlog