On June 4, 2021, the Ontario Government announced that the “COVID-19 Period” and the temporary measures introduced by O. Reg. 228/20: Infectious Disease Emergency Leave (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”) have been extended until September 25, 2021.
The Regulation, which was first introduced in May 2020, provides employers with temporary relief from the notice of termination and severance pay obligations under the ESA during the “COVID-19 Period”. That is, non-union employees who were not performing their duties, working reduced hours, or receiving reduced wages (at the employer’s discretion) are deemed to be on an Infectious Disease Emergency Leave (“IDEL”) during the designated “COVID-19 Period”.
When first introduced, the Regulation defined the “COVID-19 Period” as March 1, 2020 to September 4, 2020. Subsequent Regulations have extended the “COVID-19 Period” to January 2, 2021, then to July 3, 2021, and now again to September 25, 2021. This means that non-union employees who are not performing their duties, working reduced hours, or receiving reduced wages because of the pandemic can continue to be on an IDEL until September 25, 2021, without triggering termination and severance pay obligations under the ESA.
Once the extended COVID-19 Period comes to an end on September 25, 2021, the usual ESA rules related to layoffs and constructive dismissal will be re-engaged. Employers who are not able to fully resume operations by that time will need to carefully consider how they will address their ongoing employment issues. Employers should note that this Regulation amends the ESA rules related to layoffs and constructive dismissal. However, it may not displace an employee’s right to pursue a common law claim for constructive dismissal based on a temporary layoff or reduced hours/wages.