COVID RELATED | HTW Law - Employment Lawyer
HOW COVID-19 reshapes the landscape of Employment Law
The Infectious Disease Emergency Leave (IDEL) expired on July 30, 2022. In an non-unionized workplace environment, an employer MUST reinstate an employee to the same position, duties, and pay he or she had before the pandemic if the employee was put on a temporary layoff under IDEL. Otherwise, the employee might be entitled to quit and claim constructive dismissal.
Click here to learn more about constructive dismissal.
During the COVID-19 pandemic, INFECTIOUS DISEASE EMERGENCY LEAVE (IDEL), O. Reg. 228/20 was introduced. It's a confusing time during the pandemic and everyone could use a little help. Covid-19 has reshaped the landscape of employment law. There are many legislative changes regarding employment laws during this unprecedented time.
During the COVID-19 pandemic, INFECTIOUS DISEASE EMERGENCY LEAVE (IDEL), O. Reg. 228/20 was introduced. During this time a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 is deemed to be on a job-protected infectious disease emergency leave and will neither be considered being laid off nor being constructively dismissed. Although most of the time employers do not need to pay benefits for laid off workers, an employee that’s on IDEL is not “considered” being laid off, and thus shall continue to receive benefits.
In September, 2020, O. Reg. 492/20 was introduced where the Ontario Government amended O.Reg. 228/20 to extend deemed emergency leave under Employment Standards Act (ESA) to January 2, 2021. On December 17, 2020, O. Reg. 765/20 was introduced where the Ontario Government further amended O.Reg. 228/20 to extend deemed emergency leave under ESA from January 2, 2021 to July 3, 2021. On or about June 4, 2021, the deemed emergency leave was further extended again. O. Reg. 412/21 was introduced where the Ontario Government further amended O.Reg. 228/20 to extend deemed emergency leave under ESA from July 3, 2021, to September 25, 2021.
On September 16, 2021, the Government of Ontario further extended the period for the province’s paid infectious disease emergency leave (IDEL) entitlement, in O. Reg. 650/21, from its original expiration date of September 25, 2021, to January 1, 2022.
On December 9, 2021, the Government of Ontario further extended the period for the province’s paid infectious disease emergency leave (IDEL) entitlement, in O. Reg. 834/21, from its original expiration date of January 1, 2022, to July 30, 2022.
In essence, employment law in related to layoffs are temporarily statutory suspended until IDEL curtails in September. There is no further extension after July 30, 2022.
When IDEL is in place, it's generally believed that a Judge will be very reluctant in granting common law reliefs such as constructive dismissal in related to Infectious Disease Emergency Leave.
In fact, at least one Court has determined that “in these circumstances (COVID), you are not laid off, not constructively dismissed, and you are on statutory leave of absence.” See e.g. Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135.
You can learn more about the impact of IDEL on the Employment Standards Act (ESA) by visiting the link below:
It's a confusing time now, everyone could use a little help. Call us now at 647-849-6582 or Contact Us Now to book an appointment or if you have any questions related to Constructive Dismissal or other employment law related inquiries. We are just a phone call away.
What Happens to Employees after IDEL Curtails (from July 31, 2022 and Onward)
Employees must be recalled to their pre-COVID-19 employment, or a comparable one with the same conditions and pay, by July 31, 2022.
Do note that, however, in a pre-COVID world, only if the employee's contract allows it, may an employer place him or her on a temporary layoff. If the written employment contract is silent as to temporary lay-offs, an Employer has NO RIGHT to put an employee on a lay-off unless the employee expressly agreed, acquiesced by his or her conduct (i.e. have accepted past lay-offs without complaint) or there is a demonstrable industry norm that provides for such regular layoffs.
So for some, they might NOT have to wait long, and some may in fact be able to bring a constructive dismissal claim right away after the IDEL curtailed.
An Employee May Have A Claim of Constructive Dismissal (starting July 31, 2022):
- If an employer does not return the employees to their position, under the same terms, with the same rate of pay, the employee can claim for constructive dismissal right away.
- If an employer unilaterally forces an employee to sign a new employment agreement with terms materially different than that the pre-COVID one before employee is allowed to return to work, and the employee refuses to accept such contract modifications. The employer’s action amounts to a contractual repudiation and entitles the employee to quit and claim constructive dismissal.
If an employee is not recalled after July 31, 2022 and that the employment contract has a temporary lay-offs clause, then the pre-COVID rules applies.
The “temporary layoff clock” reset on July 31, 2022 (Pre-COVID rules): Unpaid temporary layoffs lasting 13 weeks or more will be deemed a termination of employment; and paid temporary layoffs lasting 35 weeks or more will be deemed a termination of employment. We have yet to see whether or not there will be any further extension after July 31, 2022.
It's a confusing time, and everyone could use a little help. Call us now at 647-849-6582 or Contact Us Now to book an appointment or if you have any questions related to Constructive Dismissal or other employment law related inquiries. Call Us Now, we can help.
We adhere to the most stringent safeguards. You can be confident that any information you provide will be kept strictly confidential.
All of our employees have signed a confidentiality agreement, and we will never reveal your information to a third party without your permission, including your husband or wife, family members, or employer.
After your lawyer consultation with an employment lawyer, there is no obligation to retain our services.
Everyone shops around, which is perfectly fine. We're here to help, and we'd love to be of assistance. We are even more delighted if you find better assistance elsewhere or are able to resolve the dispute without legal intervention.
We only say what is true with complete honesty. We will tell you right away if your case is weak or if it is a matter that you can resolve on your own without the assistance of an employment lawyer. We are here to assist you, not to rob you of your hard-earned money.
All we ask is that if you have a problem, you open up to us and let us help you. Withholding anything from us, even if it is detrimental to your case, will come back to haunt you later. We've seen it far too often.
FREE initial employment law consultation with an experienced employment lawyer for qualified employment law cases!!We handle sensitive employment law clients’ information with care. Call us now at 647-849-6582 or Contact Us Now if you have employment law questions or inquires or want to book an appointment for an employment lawyer consultation.
Why HTW Law – Employment Lawyer?
Are you looking for knowledgeable, professional, patient, responsive employment lawyer? HTW law – Employment Lawyer can assist you with all aspects of employment law.
HTW Law can assist with the following areas of employment law: