On May 29, 2020, the Ontario government enacted a new regulation under the Employment Standards Act, 2000 (“ESA”) that significantly alters the rules around temporary lay-offs for the duration of the COVID-19 state of emergency.
O. Reg. 228/20: Infectious Disease Emergency Leave, protects employers by deeming employees who have been laid off during the Covid-19 pandemic to be on an unpaid leave of absence.
The objective of this change is to suspend the automatic termination provisions that would be triggered which require employers to pay statutory termination pay where they do not recall an employee to work within 13 weeks of a layoff. The regulation is retroactive to March 1, 2020 and will apply until six weeks after the province declares an end to the current state of emergency.
The new regulation further provides that a reduction in hours or wages during the pandemic will not trigger a constructive dismissal under the ESA that would entitle an employee to resign and claim ESA termination pay. It is important to note however the protection does not apply if the employee resigned before May 29, 2020.
Risk of Civil Action
Employers should be aware the new regulation does not affect an employee’s ability to bring a civil action for constructive dismissal because section 8 of the ESA states that the ESA does not affect an employee’s ability to pursue a civil remedy against their employer. Therefore, employers must still be prepared that some employees will not accept a temporary layoff, or extension of that layoff, and will sue them for damages. However, the new provisions definitely give employers more flexibility and protect against the risk an employee will bring an action especially when they are likely being recalled to work in the weeks ahead.
The current legislative change takes some risk off the table for employers particularly those who were waiting for approval from the Director of Employment Standards to extend the period of layoff for their workforce.
However, the Infectious Disease Emergency Leave is not indefinite. Employers should be using this time to prepare detailed risk assessments and return to work plans. In addition, there should be regular communication with staff informing them of the arrangements being made and the date you anticipate calling them back to work.
Please do not hesitate to contact a professional at the firm to discuss how this new regulation affects your workplace and return to work plans. We can be reached via email at firstname.lastname@example.org