COVID RELATED | HTW Law - Employment Lawyer
HOW COVID-19 reshapes the landscape of Employment Law
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.
In essence, employment law in related to layoffs are temporarily statutory suspended until IDEL curtails in September. It's unsure whether there will be any further extension after January 1, 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:
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What Happens to Employees after IDEL Curtails (from January 2, 2022 and Onward)
Employees must be recalled to their pre-COVID-19 employment, or a comparable one with the same conditions and pay, by January 2, 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 January 2, 2022, 2021):
- 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 January 2, 2022 and that the employment contract has a temporary lay-offs clause, then the pre-COVID rules applies.
The “temporary layoff clock” reset on January 2, 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 January 2, 2022.
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