On December 17, 2020, the Ontario government announced a further extension to the temporary rules pertaining to COVID-19-related layoffs. Specifically, the province amended Regulation 228/20, the Infectious Disease Emergency Leave Regulation (“IDEL Regulation”) made under the Employment Standards Act, 2000 (“ESA”), to extend the last date on which an employee may be deemed to be on a statutory Infectious Disease Emergency Leave (“IDEL”) from January 2, 2021 to July 3, 2021.
The IDEL Regulation was introduced in late May to temporarily amend the rules relating to temporary layoffs under the ESA. Generally, the maximum duration of a temporary layoff under the ESA is 13 weeks in a 20-week period or 35 weeks in a 52-week period, depending on the circumstances. If employees are not recalled after that period of time, their employment is deemed to be terminated. Under the temporary rules set out in the IDEL Regulation, non-unionized employees who have experienced a reduction or elimination of hours of work for reasons related to COVID-19 are deemed to be on an IDEL rather than on a temporary layoff.
An employee may remain on a deemed IDEL until the end of the “COVID-19 period”. This new change will extend the “COVID-19 period” to July 3, 2021, rather than January 2, 2021 as it was previously slated to end.
Our previous blog post discusses these temporary measures in greater detail, including important exceptions. We encourage you review the earlier blog for a fulsome overview of the ongoing implications of the IDEL Regulation.
Takeaways for Employers
This latest extension affords many Ontario employers more time to recall laid off employees before their employment is deemed to be terminated, and notice of termination and severance pay liabilities are triggered.
However, employers should continue to be mindful of the significant risks that remain as layoffs continue. Employers are generally required to reserve the right to temporary lay employees off in an employment contract. Where there is no layoff clause providing for that right, a layoff of any duration will generally amount to constructive dismissal, regardless of whether the ESA’s temporary layoff rules are followed. As we had previously discussed, there remains some uncertainty about whether the IDEL Regulation has changed that general rule. As such, there continues to be a risk that employers that lay employees off without a contractual right to do so will be found to have constructively dismissed the employees and will be liable to pay out those employees’ termination entitlements.
As always, we will monitor the progression of COVID-19 related measures affecting employers and post further updates as they become available to keep you In the Know.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.