As first stated in one of our early COVID-19 Focus Alerts, O. Reg. 228/20, the Infectious Disease Emergency Leave (“IDEL”) Regulation under the Employment Standards Act (“ESA”), was put in place in May 2020 in order to provide employers impacted by the pandemic with temporary relief from the ESA’s ordinary rules regarding temporary layoffs and constructive dismissal. More specifically, the IDEL Regulation deems a non-unionized employee to be on unpaid, job-protected IDEL for the duration of what it refers to as the “COVID-19 Period” in specified situations, such that termination and severance pay entitlements will not be triggered under the ESA by a COVID-related temporary reduction or elimination of hours of work or by a temporary reduction in wages during that time.
The COVID-19 Period included in the IDEL Regulation has been extended a number of times. Until recently, and as referenced in a COVID-19 Focus Alert issued this past winter, the protections included in the IDEL Regulation were set to remain in place until July 3, 2021. On June 4, 2021, however, a new Regulation under the ESA – O. Reg. 412/21 – came into force. This new Regulation extends the COVID-19 Period – and all the protections of the IDEL Regulation that apply during it – until September 25, 2021.
In Our View
The coming into force of this new Regulation is positive news, especially since Ontario has just commenced its reopening, and does not anticipate being fully reopened until later this summer at the earliest. The extension of the COVID-19 Period under the IDEL Regulation will permit employers to continue to benefit from temporary protection against claims by non-unionized employees of termination or severance of employment under the ESA due to a pandemic-related temporary reduction in hours of work or wages during an ongoing challenging period. The ESA’s regular rules surrounding temporary layoff will only resume beginning on September 26, 2021.
It is worth noting, however, that notwithstanding the extension of the COVID-19 Period nor the IDEL Regulation, in certain circumstances some employees may still commence a common law claim of constructive dismissal arising from a temporary layoff or reduction in hours of work. There are conflicting decisions from the courts with respect to whether the ESA’s IDEL Regulation restricts an employee’s ability to pursue a claim for constructive dismissal as discussed in our Focus Alert on the Taylor v. Hanley Hospitality Inc. decision, which can be reviewed here.
For more information on your rights and obligations as an employer dealing with COVID-19, temporary layoffs, and/or claims of constructive dismissal, please contact Colleen Dunlop at 613-940-2734, Sheri Farahani at 613-769-4781 or Erica Bennett at 613-940-2748.
