As first discussed in a Focus Alert from early in the pandemic, Ontario Regulation 228/20, the Infectious Disease Emergency Leave (IDEL) regulation (the “IDEL Regulation”), provides employers who have been impacted by COVID-19 with temporary relief regarding temporary layoff and constructive dismissal rules under the Employment Standards Act, 2000 (ESA).
Changes to the IDEL Regulation were made in the fall and winter of 2020, including extensions to the “COVID-19 Period.” The COVID-19 Period is the period during which non-unionized employees are deemed to be on unpaid, job-protected IDEL, such that termination and severance pay entitlements will not be triggered under the ESA by a COVID-19-related temporary reduction or elimination of hours of work or by a temporary reduction in wages during that time.
On September 16, 2021, the Ontario government filed a regulation further extending the end date of the COVID-19 Period, and therefore the protections that apply during the period, to January 1, 2022. The COVID-19 Period had previously been set to expire on September 25, 2021.
This means that on January 2, 2022:
- Employees will no longer be deemed to be on IDEL;
- The ESA’s regular constructive dismissal rules will resume. A significant reduction or elimination of an employee’s hours of work or wages may therefore be considered constructive dismissal under the ESA, even if the reasons for the change are related to COVID-19; and
- The ESA’s regular temporary layoff rules will resume. An employee’s temporary layoff clock will reset on January 2, 2022.
In Our View
The extension of time will be helpful for employers, as they will continue to benefit from temporary protection against claims by non-unionized employees of termination or severance of employment under the ESA due to COVID-19-related changes to hours or wages as outlined above.
However, employers should be aware that despite the provisions of the IDEL Regulation, employers may still face constructive dismissal claims under the common law for a reduction or elimination of hours or a reduction in wages relating to COVID-19. As discussed in our Focus Alerts on the cases of Coutinho v. Ocular Health Centre Ltd., Taylor v. Hanley Hospitality Inc., and Fogelman v. IFG, the Ontario Superior Court of Justice has released decisions coming to differing conclusions about whether the IDEL provisions restrict an employee’s ability to make constructive dismissal claims under the common law.
We remain hopeful that the Court of Appeal will soon provide clarity on this issue, but until then, employers are urged to seek legal advice if faced with decisions relating to changes to wages or hours given the lack of certainty in the law.
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.
