Ontario introduces Infectious Disease Emergency Leave

July 02, 2020

The Ontario government has exempted temporary layoffs and shortened hours due to COVID-19 from employee protections that would normally make them illegal.

The Infectious Disease Emergency Leave, or Ontario Regulation 228/20, protects employers—and ensures workers have jobs to return to as the economy shifts into recovery. The program was announced May 29, 2020.

As employers faced huge dips in revenue from the pandemic, they faced difficult talent decisions. Many were forced to place valuable employees on temporary layoffs or cut their hours. Normally, these actions could trigger consequences under the Employment Standards Act.

The May 29 announcement addresses a time crunch for employers and employees.

Most of the temporary layoffs came at the end of March and beginning of April. In Ontario, temporary layoffs are typically allowed for up to 13 weeks in any consecutive 20-week period. By placing workers on Infectious Disease Emergency Leave, employers can avoid severing the employment relationship. Workers will remain employed and eligible for federal income support programs.

When does the Regulation apply?

The Infectious Disease Emergency Leave applies from March 1, 2020, until six weeks after the declared COVID-19 emergency ends.

Who does this Regulation affect?

Mostly non-unionized employees. Assignment workers are included.

What is considered an ‘infectious disease’?

Diseases caused by the novel coronavirus such as severe acute respiratory syndrome (SARS), Middle East respiratory syndrome (MERS), and coronavirus (COVID-19).

Does this mean there cannot be any constructive dismissal for the period the Regulation is in effect?

No. Constructive dismissal no longer applies to layoffs due to COVID-19 stipulations. Constructive dismissal could still apply to work or hour reduction on other bases. Employees could still apply for constructive dismissal under common law.

What if employees were put on temporary layoff prior to March 1, 2020?

Any employee who was laid off before March 1 will still be considered on a temporary layoff, and the regular statutory expirations will apply. Any employee laid off after March 1 due to COVID-19 will automatically be converted to the Infectious Disease Emergency Leave and will not have employment expire at the regular temporary layoff expirations.

What if an employee was placed on a termination notice before the May 29 announcement of the Infectious Disease Emergency Leave?

Any employee who received a termination notice prior to May 29 will not be considered to be on an Infectious Disease Emergency Leave unless both the employer and employee agree to withdraw the notice of termination.

What if an employee filed a constructive dismal complaint due to the reduction of wages or elimination of hours brought on by COVID-19?

These complaints will be considered as not filed if the reason for the reduction in wages or the elimination of hours was due to COVID-19 and the complaint was made for the time from March 1 to six weeks after the emergency declaration has ended.

What counts as a reduction of wages or hours under the new Regulation?

There are two possible scenarios:

  1. When the employee has a regular work week and earns less regular wages or works fewer hours in the work week than when they worked the last regular work before March 1, 2020 (certain exceptions may apply).
  2. When the employee does not have a regular work week and earns less regular wages or works fewer hours in a week than the average amount of the regular wages earned per week in the 12 consecutive work weeks prior to March 1, 2020 (certain exceptions may apply).

What if an employee was terminated after March 1 but before May 29? Will they be reinstated?

No. The termination will stand. There will not be any reversals of outcomes under the new Regulation.

How will this Regulation affect unionized work environments?

The Regulation does not apply to unionized work environments. Check with the collective agreement or a union representative.

To find out more, reach out to our People Advisory team

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