We had a feeling this might happen! And it has. The Ontario government has extended the length of the Deemed Infectious Disease Emergency Leave (IDEL) AGAIN! Enacting O. Reg 765/20, amending O. Reg 228/20 both under the Employment Standards Act (ESA).
We have been warning our clients – and webinar attendees – about the upcoming January 2, 2021 end to the Deemed IDEL – it has now been extended to July 3, 2021.
What is a Deemed IDEL?
Employees who were laid off or had their hours reduced from March 1, 2020, until July 3, 2021, are on a deemed IDEL. During normal times, we would consider these employees to just be laid off but these regulations convert any reduction in hours – including all the way to ZERO hours and ZERO pay – to be deemed IDELs and not layoffs.
This matters because under the regular provisions of the ESA, layoffs can only last for a specified period of time – 13 weeks or 35 weeks if benefits are continued – before an employee is determined to be terminated. Once a layoff surpasses these timelines, employees are entitled to their termination entitlements.
The deemed IDEL will now continue to provide protection to employers from the regular layoff timelines, as well as protection from constructive dismissal claims under the ESA for temporary reductions in hours or wages related to COVID-19 until July 3, 2021.
Employees Who Are Voluntarily on the IDEL
There is another class of employees who may be on the IDEL. These are employees who voluntarily go on the IDEL. Their work is available, but for some reason related to COVID-19 they are unable to work. These employees have not been laid off, but are taking advantage of job protection under the IDEL which functions like any other ESA leave. Like an employee on parental leave, for example, an employee can take the IDEL if they establish their entitlement. The IDEL is an unpaid leave. Employers do not have to continue to pay the employee, but they do need to hold their job for them and they do need to continue employee benefits.
For reasons an employee can take a voluntary IDEL, check out the Ministry of Labour’s comprehensive list. In general, employees need to be unable to work due to childcare responsibilities, having COVID-19 or exposure to COVID-19, providing care to someone with COVID-19 or other COVID-19 related reasons.
Employees who are simply afraid to come to work, or have concerns about exposure due to compromised immunity are generally not going to fall under this leave, but may have entitlement to a human rights accommodation.
The entitlement to the voluntary IDEL lasts for as long as the employee’s circumstances giving rise to the entitlement last or until COVID-19 is no longer designated as an infectious disease under the leave. The list of designated infectious diseases is set out in O. Reg. 66/20.
Please check out our Guide for Employers during Covid-19 for more information or get in touch if you have questions about the extension of the deemed IDEL to July 3, 2021, and the impact on your workforce.