On December 7, 2021, the Ontario government extended the deemed Infectious Disease Emergency Leave (“IDEL”) until July 31, 2022 by amending the Infectious Disease Emergency Leave regulation (the “Regulation”) under the Employment Standards Act (the “ESA”) to extend the “COVID-19 period”. As a result, non-unionized employees who are subject to the ESA and who remain on temporary layoff for certain reasons related to COVID-19 will continue to be on a deemed IDEL rather than a layoff, up to July 31, 2022.
Similarly, the Ontario government also amended the Regulation by extending the availability of the paid IDEL, such that eligible employees will continue to be entitled to up to three (3) days of paid leave where they cannot work for certain reasons related to COVID-19 until at least July 31, 2022.
Deemed Infectious Disease Emergency Leave Extended
As noted above, recent amendments to the Regulation have extended the deemed IDEL, which the Ontario government implemented as a temporary relief measure for employers during the pandemic.
Under the Regulation, non-unionized employees whose hours are reduced or eliminated, or whose wages are reduced by their employer, for reasons related to COVID-19 during the COVID-19 period are deemed to be on an unpaid IDEL and not on a temporary layoff. Notably, absent these temporary measures, such employees would generally be considered to be on a temporary layoff for the purposes of the ESA where their wages are eliminated or reduced by their employer by 50% or more in any given week.
Pursuant to the Regulation, where a non-unionized employee is temporarily laid off for reasons related to COVID-19 during the COVID-19 period, such that they are deemed to be on an IDEL, that time does not count toward the maximum layoff durations permitted by the ESA. This is important because if an employee is laid off for longer than the ESA allows, then their employment is deemed to have been terminated and they are entitled to receive their termination entitlements.
Moreover, the Regulation provides that it is not constructive dismissal where a non-unionized employee’s hours of work are reduced or eliminated, or where their wages are reduced, for reasons related to COVID-19 that result in them being deemed to be on an IDEL, subject to certain exceptions. Crucially, however, there is continuing legal uncertainty as to whether the Regulation prevents employees from claiming constructive dismissal at common law, or if it only prevents them from being constructively dismissed for the purposes of the ESA (for more information on this, please read our blog on Taylor v Hanley Hospitality Inc. and Coutinho v Ocular Health Centre Ltd., and our blog on Fogelman v IFG).
For more information on the deemed IDEL more broadly, please read our initial blog on this subject.
Paid Infectious Disease Emergency Leave
The paid IDEL, which provides eligible employees with up to three (3) days of paid leave where they cannot attend work for certain reasons related to COVID-19, has also been extended until July 31, 2022 through amendments to the Regulation.
In particular, eligible employees are entitled to be paid up to $200 per day for up to three (3) days where they cannot attend work because they:
- are sick with COVID-19;
- are going for a COVID-19 test or staying home awaiting the results of a COVID-19 test;
- are going to receive a COVID-19 vaccination or are experiencing a side effect from a COVID-19 vaccination;
- have been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other authority; or
- are taking care of a dependent who is sick with COVID-19, has symptoms of COVID-19, and/or is self-isolating due to COVID-19.
Crucially, employees are not entitled to a paid IDEL if they are already entitled to at least three (3) paid sick days under their employment agreement which can be taken in at least some of the same circumstances that would entitlement them to a paid IDEL.
Like the unpaid IDEL, employers are prohibited from requiring employees to provide a doctor’s note as evidence that they are entitled to the paid IDEL. Nonetheless, employers can require such employees to provide evidence that is reasonable in the circumstances that they are entitled to a paid IDEL.
It is also important to note that eligible employers can get reimbursed by the Ontario government for up to $200 for each day that an eligible employee takes a paid IDEL by submitting an application to the Workplace Safety and Insurance Board within 120 days. For more information on the paid IDEL, please read our previous blog.
Takeaways for Employers
The extension of the COVID-19 period until July 31, 2022 means that non-unionized employees who are subject to the ESA and who remain on temporary layoff for certain reasons related to COVID-19 will continue to be on a deemed IDEL, rather than on a temporary layoff, until the temporary rules expire. This is great news for employers because it means that any time during which such employees are laid off up to July 31, 2021 will not count towards the maximum layoff durations under the ESA. As a result, provincially regulated employers with non-unionized workplace have added flexibility to lay employees off for longer than would normally be allowed, without the employees’ employment being deemed to be terminated under the ESA, until after the temporary rules expire. Given that this is not the first time the COVID-19 period has been extended, it is also possible that it may be extended further beyond July 31, 2022.
On the other hand, the extension of the paid IDEL means that provincially regulated employers must ensure that they continue to provide eligible employees with up to three (3) days of paid leave where they are entitled to it, including for the purposes of receiving booster vaccines. Not only is this necessary for such employers to comply with the ESA, it will also help encourage their employees to be vaccinated and reduce the risk employees who may have contracted COVID-19 from attending the workplace in order to avoid losing wages.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.