COVID-19 infectious disease emergency leave extended‎ in Ontario; temporary layoffs delayed until January 2, 2021‎

On September 3, 2020, the Ontario Government announced that the “COVID-19 Period” and the temporary measures introduced by O. Reg. 228/20: Infectious Disease Emergency Leave (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”) have been extended until January 2, 2021. The temporary measures introduced by the Regulation were previously set to end on September 4, 2020.‎

The Regulation was filed under the ESA in May 2020 in response to the COVID-19 pandemic. The Regulation amended the provisions of the ESA that relate to Infectious Disease Emergency Leave, temporary layoffs and deemed terminations of non-unionized employees in order to provide employers with temporary relief from the notice of termination and severance pay provisions of the ESA during the “COVID-19 Period”.

During the COVID-19 Period (March 1, 2020 to January 2, 2021):‎

• 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.‎
• A non-unionized employee is not considered to be laid off if their employer ‎temporarily reduces or eliminates their hours of work or wages for reasons related ‎to COVID-19.‎
• A non-unionized employee is not considered to be constructively dismissed under ‎the ESA if their employer temporarily reduces or eliminates their hours of work or ‎wages for reasons related to COVID-19.‎

After the COVID-19 Period (beginning on January 3, 2021):‎

• Employees will no longer be deemed to be on infectious disease emergency leave. ‎
• The ESA's regular rules around constructive dismissal resume. This means a ‎significant reduction or elimination of an employee’s hours of work or wages may ‎constitute a constructive dismissal, even if it was done for reasons related to ‎COVID-19.‎
• The ESA's regular rules around temporary layoff resume. For practical purposes, an ‎employee’s temporary layoff clock re-sets on January 3, 2021.‎ Subject to certain exceptions, a temporary layoff can last no more than thirteen (13) weeks in any period of twenty (20) consecutive weeks, after which the temporary layoff will be deemed a termination of employment. The employer will then be subject to the notice of termination and severance pay provisions of the ESA.

The extension of the temporary measures introduced by the Regulation (and, specifically, the COVID-19 Period) from September 4, 2020 to January 2, 2021 is significant for those employers who have temporarily reduced or eliminated employees’ hours of work or temporarily reduced employees’ wages, or who intend to do so, during the COVID-19 Period in response to the COVID-19 pandemic.

For further information, please consult our ‎Coronavirus Resource ‎Centre or ‎contact any member of our DLA Piper Canadian Employment and ‎Labour Law Service ‎Group, who will ‎ensure that you are acting upon the most up-to-date information.‎

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.