On May 29th, 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.
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.
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:
Wages are considered to be reduced if the following occurs:
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.
If the employer and the employee agree, the notice can be withdrawn, and the employee can be deemed to be on Infectious Disease Emergency Leave.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.
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:
There is no impact on payments or benefits an employee received from their employer between March 1, 2020 to May 29, 2020.
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.