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LeClaire & Associates COVID-19: Status Update 16

Wednesday, August 12, 2020 - 11:49

State of Emergency at an END, but what does it mean?

  • Bill 195, otherwise known as the Re-opening Ontario (A Flexible Response to COVID19) Act, 2020 came into force on July 24, 2020. It had the effect of ending the Declared State of Emergency in the Province of Ontario, which has a number of implications for employers.

Temporary Layoffs

  • We still have staff on “temporary layoff” and these are likely to continue beyond September 4, 2020. What are the legal implications of this? First, Regulation 228/20 (a Regulation to the Employment Standards Act (“ESA”)) provided for a COVID-19 Period, which we now know runs between March 1, 2020 and September 4, 2020.
  • Period of Exemption: Accordingly, any layoffs occurring over the COVID-19 Period are considered exempt from having triggered the termination provisions under the ESA, given that temporary layoffs during this time were converted into Infectious Disease Emergency Leave (“IDEL”). • What about the risk of Constructive Dismissal that we heard so much about? Regulation 228/20 temporarily limited the right to pursue any constructive dismissal claims in relation to the COVID-19 Period, where an employee’s hours were reduced or eliminated, or where their wages were temporarily reduced for reasons related to COVID-19. This provision was aimed at protecting those employers that were compelled to implement layoffs, without having had the contractual entitlement to do so.
  • Will the ordinary rules of engagement once again apply after September 4, 2020? Temporary layoffs that continue beyond September 4, 2020, will once again initiate and be subject to the statutory time limits contained in ESA. More specifically, temporary layoffs will be limited to periods of 13 weeks in any 20 consecutive week period, or 35 weeks in 52 consecutive weeks, provided in the latter instance that additional payments and/or benefits are continued. To demonstrate the point, if employees were placed on a temporary layoff during the COVID-19 Period, e.g. from April 1, 2020, then the period up to an including September 4, 2020 will be exempt and the first effective date of the temporary layoff will be from September 5, 2020 and the usual ESA time limits will apply.
  • Where employees will remain on a temporary layoff beyond September 4, 2020, should we be issuing them with new notices of temporary layoff? Yes, we believe this to be a prudent practice, as it would serve to clearly delineate between any period of IDEL and time periods which would run under the ESA’s temporary layoff provisions.
  • There is information online signalling September 4, 2020 as “D-Day”, stating that employees who are still on a temporary layoff by September 5, 2020 will be deemed to be terminated? Quite simply, these interpretations are not supported by the wording of Regulation 228/20, which specifically exempted the COVID-19 Period and any associated triggering of the ESA’s termination provisions, not to mention that it fails to acknowledge the conversion of all temporary layoffs during the COVID-19 Period into to IDEL.

Infectious Disease Emergency Leave (“IDEL”)

  • We still have employees who are on IDEL. Does this now come to any end? Declared Emergency Leave (“DEL”) concludes with the end of the State of Emergency in Ontario under Bill 195. What did not end was an employee’s entitlement to IDEL - a form of job protected leave introduced to the ESA in response to the pandemic. IDEL will remain available to employees for as long as ‘COVID-19’ remains a designated ‘infectious disease’, which is still the case. IDEL can therefore continue to be claimed by employees for various reasons related to COVID-19, where the employee is:
    • under medical investigation, supervision or treatment;
    • acting in accordance with an order under the Health Protection and Promotion Act;
    • in isolation or quarantine in accordance with public health information or direction;
    • not to work following a direction from the employer;
    • needs to provide care to a family member for a reason related to COVID-19 (including school or day-care closures); or
    • is prevented from returning to Ontario because of travel restrictions.

Further updates will follow as and when new information is confirmed. For specific questions or concerns, please reach out to us directly at – nic@leclairandassociates.ca
ron@leclairandassociates.ca

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