Both employers and employees in the CKL need to be aware of their exposure to risk arising from the end of the province’s declaration of emergency.
While existing emergency orders will continue under the new, replacement legislation, the end of the emergency declaration will potentially have significant consequences for both employers and employees.
Risk of Deemed Terminations
In late May, the Ontario government filed Regulation 228/20 under the Employment Standards Act, 2000 (“ESA”), which provides that employees who did not perform their duties because their hours of work had been temporarily reduced or eliminated due to COVID-19 during what was referred to as the “COVID-19 period” were deemed to be on Infectious Disease Emergency Leave (or “IDEL”).
The COVID-19 period was specifically defined under the Regulation as beginning on March 1, 2020 and ending six (6) weeks after the declared state of emergency comes to an end.
Because the declared state of emergency ended on July 24, 2020, the “clock” starts to run.
Once that six-week period ends, the regular ESA rules regarding temporary lay-offs will apply once again and employers who cannot return employees to work within the time frame permitted for such temporary lay-offs may face claims of deemed termination.
Risk of Constructive Dismissal Claims
Pursuant to Regulation 228/20, the Ontario government also provided employers with limited, statutory protection against claims of constructive dismissal where an employee’s hours were temporarily reduced or eliminated, or where an employee’s wages were temporarily reduced, due to COVID-19 during the COVID-19 period.
However, once the COVID-19 period ends, employers who remain unable to return employees to their regular hours or wages will therefore also need to be mindful of the risk of claims of constructive dismissal.
Availability of Emergency Leave: Declared Emergencies and Infectious Disease Emergencies
Under the ESA, Emergency Leave – which is an unpaid, job-protected leave of absence available to eligible employees – can currently be accessed in two ways:
in cases of declared emergency (also referred to as Declared Emergency Leave or “DEL”); i.e., when an emergency is declared under the EMCPA and the individual meets other legislated conditions; or
in cases of infectious disease emergencies (also referred to as Infectious Disease Emergency Leave or “IDEL); i.e., for reasons related to COVID-19 specifically, including but not limited to that the individual is under medical investigation, supervision or treatment; the individual is under quarantine or isolation; or the individual is providing care or support to an a listed family member (e.g., school or daycare closures).
With the end of the declared state of emergency in Ontario, employees will generally no longer be able to qualify for DEL. However, IDEL will continue to remain available to those who qualify for reasons related to COVID-1 specifically and employers will need to be mindful of each individual employee’s circumstances when determining whether or not they will continue to remain eligible for IDEL from this date forward.
Continuation of Emergency Orders
As all existing emergency orders will continue under the new legislation, employers must continue to monitor for any temporary orders that might apply to their workplace.
For example, there are currently a number of orders that deal with labour redeployment or workplace and management rules in certain sectors, as well as with the closure of certain places and spaces or the regulation of how businesses and establishments can safely operate.
Furthermore, although the Act does not permit the Lieutenant Governor to create new temporary orders, it does allow some of them to be amended. Employers must therefore be mindful that any applicable temporary orders are potentially subject to change.
With the declared state of emergency ended, those on or deemed to be on declared emergency leaves or a deemed infectious diseases leave under the Ontario Employment Standards Act, 2000 (the "ESA") and its regulations will see certain rules and entitlements expired or set to expire.
Unless the government legislates or regulates otherwise:
• employees are no longer eligible for a declared emergency leave under the ESA; and
• effective on or about September 4, 2020:
- temporary reductions of employees' hours of work or wages by an employer for reasons related to COVID-19 will no longer be deemed to be on an infectious disease leave in accordance with the O. Reg. 228/20: Infectious Disease Emergency Leave under the ESA, available here;
- any temporary reductions to, or elimination of an employee's hours of work, or the reduction of any employee's wages by the employer for reasons related to COVID-19 will no longer expressly be deemed not to constitute constructive dismissal under the ESA;
- temporary layoffs under the ESA will no longer be converted to, or deemed to be, an infectious disease leave in accordance with the O. Reg. 228/20; and
- any employees who were deemed to be on an infectious disease leave in accordance with O. Reg. 228/20 will cease to be on the infectious disease leave.
The end of the declared state of emergency does not impact employees' entitlement to the infectious disease emergency leave provided for under the ESA, which applies for as long as the event triggering entitlement to the leave lasts.