On May 29^th, 2020, the Ontario Government published O. Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (the “ESA”). This new addition to the emergency leave policies will help aid both the employees and employers who had to conduct temporary layoffs due to the COVID-19 pandemic.

What does this mean?

With the new updates to the legislation, the infectious disease leave now covers all non-unionized employees who have experienced hours of work reductions, pay reductions, or layoffs that have been a result of COVID-19. All are now protected under the Infectious Disease Emergency Leave during the COVID-19 Period.

The COVID-19 Period started on March 1, 2020 and will end 6 weeks after the day that the emergency declaration in Ontario is terminated. If an employee has experienced either hours of work reductions, pay reductions, or a layoff between any of this time, they are protected under the new legislation.

What constitutes a reduction in hours during the COVID-19 Period?

To summarize, a reduction of pay and hours of work or even a full elimination of your job due to the Coronavirus Pandemic is not being considered a temporary layoff during the COVID-19 Period.

Hours of work are considered to be reduced if the following occurs:

• where the employee has a regular work week, the employee works fewer hours in the work week than they worked in the last regular work week before March 1, 2020, noting certain exceptions; or
• where the employee does not have a regular work week, the employee works fewer hours in the work week than the average number of hours they worked per work week in the 12 consecutive work weeks preceding March 1, 2020, noting certain exceptions.

What constitutes a reduction in wages during the COVID-19 Period?

Wages are considered to be reduced if the following occurs:

• where the employee has a regular work week, the employee earns less regular wages in the work week than they worked in the last regular work week before March 1, 2020, noting certain exceptions; or
• where the employee does not have a regular work week, the employee earns less regular wages in the work week than the average amount of regular wages they earned per work week in the 12 consecutive work weeks preceding March 1, 2020, noting certain exceptions.

I’ve already made layoffs, what happens now?

Before March 1, 2020: Any period of temporary layoff that came before the COVID-19 Period will remain intact and will count towards future statutory temporary layoff calculations. This new regulation does not reverse this outcome.

After March 1, 2020: Any period of layoff that arose on or after the COVID-19 Period that meets the requirements of the Regulation in that it was connected to COVID-19 will be eliminated and will not count for any statutory temporary layoff calculations in the future. If an employee has been terminated with rightful causes not related to COVID-19, they are not protected under the infectious disease emergency leave.

What if an employee is currently on working notice of termination due to COVID-19 layoffs?

If the employer and the employee agree, the notice can be withdrawn, and the employee can be deemed to be on Infectious Disease Emergency Leave. Without agreement of both parties, however, the notice of termination stands.

What rights or benefits does an employee have who has been deemed to be on infectious disease leave during the COVID-19 Period?

All the normal rules associated with statutory leaves under the ESA will apply to an employee who is deemed to be on Infectious Disease Emergency Leave during the COVID-19 period, except for the following:

1. The normal requirement for the employee to provide notice of their intention to take the leave does not apply;
2. If the employee stopped participating in certain benefit plans as of May 29, 2020, the employee does not have to make a further election to not participate during the COVID-19 Period; and
3. If the employer stopped making employer-contributions to certain benefit plans as of May 29, 2020, the employer does not have to reinstate those contributions during the COVID-19 Period.

There is no impact on payments or benefits an employee received from their employer between March 1, 2020 to May 29, 2020.

How does Constructive Dismissal fit in?

In the ESA, Constructive Dismissal is defined as an occurrence when an employer makes major unfavourable changes to an employee’s work conditions such as lowering their wages, dramatically reducing hours, or making significant changes to their duties.

During COVID-19 Period: The Regulation establishes that a temporary reduction or elimination of hours or a reduction of wages during the COVID-19 Period does not constitute a constructive dismissal. This is both retroactive to March 1, 2020 and prospective to the end of the COVID-19 Period. Any files of constructive dismissal during the COVID-19 Period will be deemed not to have been filed.