On July 21, 2020, the Government of Ontario passed Bill 195, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“Bill 195”).
Bill 195 came into effect on July 24, 2020, allowing almost all orders made under the Emergency Management and Civil Protection Act (EMCPA) to continue in force despite the end of the Declaration of Emergency. As of July 24, the orders continue to apply for an initial period of 30 days. As discussed in our recent blog, Bill 195 allows the province to continue to extend these orders for up to 30 days at a time, or to rescind them, as well as make limited amendments to certain orders. However, unlike while the Declaration of Emergency was still in effect, the province will no longer be able to create new emergency orders.
The intended purpose of the legislation is to “bridge the gap” between emergency measures which were necessary for the immediate response to COVID-19 and the public health measures that will continue to be necessary in the longer term.
The end of Ontario’s Declaration of Emergency on July 24, 2020 also has important effects on several emergency leaves available under the Employment Standards Act, 2000 [ESA]:
- Declared Emergency Leave (“DEL”): The general entitlement to the DEL will no longer be available, as an employee can only qualify for DEL when they are not performing the duties of their position because of a declared emergency. However, in limited circumstances it is possible for a DEL to continue beyond the end of the declared emergency where the employee is not performing their work duties because of an emergency order which was passed during the state of emergency and has been extended.
- Infectious Disease Emergency Leave (“IDEL”): Employees are still entitled to this new job-protected leave created under the ESA at the start of the pandemic as long as COVID-19 remains a designated infectious disease for the purposes of the ESA. The end of the Declaration of Emergency does not prevent employees from claiming IDEL for one of the prescribed reasons related to COVID-19.
- Deemed IDEL: The period for the deemed IDEL for employees whose hours were temporarily reduced or eliminated for reasons related to COVID-19, created under a new regulation to the ESA in late May 2020, is set to end six weeks after the end of the declared emergency is terminated. This means that, as of September 4, 2020, the deemed IDEL rules will no longer apply, and the regular ESA rules respecting leaves, layoffs, and constructive dismissal will apply again.
Takeaways
The end of the Declaration of Emergency on July 24, 2020 has significant implications for employers, particularly those which have not yet brought all their employees back to work or restored their wages, and had not anticipated doing so before September 4, 2020. With the end of the deemed IDEL, employers will lose some of the flexibility they previously had with regard to layoffs and changes to employee hours and wages due to the pandemic.
Employers should be aware that many employees may still be entitled to the regular IDEL, and in limited circumstances the DEL, beyond the end of the declared emergency. Employers should also keep in mind that an employee who had claimed entitlement to the DEL may continue to be eligible for the job-protected IDEL.
Meanwhile, employers with employees who are currently on a deemed IDEL should be aware of the regular ESA rules which will come back into effect in September 2020. Specifically, a temporary reduction or elimination of an employee’s hours or a reduction of wages which formerly entitled the employee to a deemed IDEL may now constitute a constructive dismissal or a temporary layoff subject to the ESA’s limits on the duration of layoffs. Employers will have to keep track of the maximum layoff periods to avoid a layoff resulting in a deemed termination. As of September 4, 2020, employers may be able to temporarily lay off employees for up to 13 weeks in a 20-week period, while the weeks between March 1 and September 4, 2020 which would normally have been considered “weeks of layoff” will not count toward the maximum layoff period. In certain circumstances, such as where benefits are continued, employers may be able to temporarily lay off employees for up to 35 weeks in a 52-week period
Employers may also become liable to pay employees significant termination and severance entitlements if changes to their hours or wages constitute a constructive dismissal. In addition, employees will again be able to file complaints for constructive dismissal with the Ministry of Labour for such reductions or eliminations of hours or reductions of wages.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.