Revisiting Ontario’s COVID-19 Temporary Layoffs and Dismissal Changes

By Merovitz Potechin on Tuesday April 20, 2021.

During Ontario’s third lockdown, many sectors are once again navigating partial or full closures and significant changes in business operations. These changes are impacting workplaces and forcing businesses to make tough staffing decisions. Ontario has updated the regulations of the Employment Standards Act (ESA) to help employers and employees effectively manage these short-term business changes, including temporary layoffs. The intersection of these policies and regulations is complicated. To help we’ve summarized the key areas that are impacted.

Infectious Disease Emergency Leave

The Infectious Disease Emergency Leave (IDEL) Regulation was first established under the ESA in May of 2020 and was updated in December of 2020 in anticipation of the second COVID-19 lockdown. Under the IDEL, when non-unionized employees have their hours of work reduced or temporarily eliminated, or they experience a reduction in salary for reasons related to COVID-19, the employee is deemed to be on a job-protected Infectious Disease Emergency Leave, and not temporarily laid off.

Ordinarily, a reduction in work hours or salary is a temporary lay-off if it is less than 13 weeks in any period of 20 consecutive weeks or less than 35 weeks in any period of 52 consecutive weeks. If the lay-off period is longer than that, the employee is considered terminated as of the day the lay-off started. However, under the IDEL, the “clock” for calculating time for lay-off is temporarily suspended and all employees who are laid off during the COVID-19 period (March 1, 2020 to July 3, 2021) are deemed to be on the Infections Disease Emergency Leave. The Leave entitles an employee to a leave of absence without pay if the employee will not be performing the duties of his or her position.

Employees are only deemed to be on the IDEL if their work hours were reduced or eliminated by the employer. In other words, employees do not have a right to not attend work if their employer does schedule them but with reduced hours.

Constructive Dismissal

Another COVID-19 related regulation greatly impacted the rules on Constructive Dismissal. We’ve talked about Constructive Dismissal in our blogs before as it is an area people often have questions about. The important thing to note about the recent COVID-19 change is that non-unionized employees cannot claim they have been constructively dismissed under the ESA where their wages or hours of work are temporarily reduced or eliminated for reasons related to COVID-19 from March 1, 2020 to July 3, 2021.

If you have questions about how the changes to the Employment Standards Act could impact your business or you as an employee, please do not hesitate to contact the Employment Law team and Merovitz Potechin LLP.