What do employers and employees need to know about IDEL and CEWS?

There were significant changes in legislation both federally and provincially to help employers and employees through the height of the pandemic, but it now looks like both of those changes will be winding down shortly.

The Canada Emergency Wage Subsidy (“CEWS”) was a program offered to employers starting in 2020 to help assist with covering employees’ wages during pandemic-related business interruptions. Payments are issued to employers relative to the actual decline in earnings in order to cover a percentage of wages, and the numbers can get complicated (read more about the sliding scale here). CEWS and the Canadian Emergency Rent Subsidy were discontinued in October 2021, and replaced with two new programs providing wage and rent support: the Tourism and Hospitality Recovery Program (“THRP”) and the Hardest-Hit Business Recovery Program (“HHBRP”). Both of these new programs have also been discontinued, with the last claim period ending May 7, 2022. The THRP provided coverage for a business in the hospitality industry that had had a significant revenue drop or for any business, charity, or non-profit that had been impacted by a lockdown. The HHBRP provided coverage for a business, charity, or non-profit not eligible for the THRP and which saw its revenue decrease by at least half in the qualifying periods.

In Ontario, the provincial government amended the Employment Standards Act, 2000 (the “ESA”) and created the Infectious Disease Emergency Leave (“IDEL”), which was intended as a job-protected leave for employees who have been infected with COVID-19 or who have been ordered to quarantine as a public health measure because of their exposure to infection. In addition, during the “COVID-19 Period”, employees who were unable to work for certain reasons related to COVID-19 were deemed to be on IDEL (the “Deemed IDEL”).

The Deemed IDEL ended on July 30, 2022*. Any employee who was on Deemed IDEL was to be recalled by this time. The provincial government has confirmed that any employee who continues to be off pursuant to a Deemed IDEL is not on this leave under the regulation.

Employees in Ontario continue to be eligible to take unpaid IDEL if they are not performing their duties due to specified reasons (see below) pertaining to a designated infectious disease. COVID-19 remains the only designated infectious disease. This is a job protected leave under the ESA, meaning that an employee may not be penalized for taking this leave, and their employer must return them to the same position they filled prior to going on leave.

The specified reasons for taking unpaid IDEL as outlined by the government of Ontario are:

1. The employee is under individual medical investigation, supervision or treatment related to a designated infectious disease. The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country.

Examples include:

1. 1. An employee is not performing the duties of their position because they are under the medical supervision of a doctor:
      1. due to having contracted COVID‑19
      2. because of mental health reasons relating to COVID‑19
   2. An employee is not performing the duties of their position because they left work in order to get a COVID‑19 vaccination or are experiencing a side effect from the COVID‑19 vaccination. In both of these situations, the employee is under individual medical treatment (which includes preventative actions, such as vaccinations and recovery from associated side effects) related to COVID‑19.

2. The employee is following a COVID‑19 related order issued under section 22 or 35 of the Health Promotion and Protection Act.
3. The employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued:
   1. by a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      1. the Chief Medical Officer of Health or Associate Chief Medical Officer of Health
      2. a medical officer of health or an associate medical officer of health
      3. an employee of a board of health
   2. by someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak)
   3. by Telehealth Ontario
   4. by the Government of Ontario or Canada
   5. by a municipal council in Ontario
   6. by a board of health
   7. to the public (in whole or in part)
   8. to one or more people, and
   9. through any means, including print, electronic or broadcast (for example, television or radio)
4. The employee is under a direction given by their employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.
   Examples include where the employer directed an employee to stay at home for a period of time because the employee recently travelled internationally and the employer is concerned they may expose others in the workplace to a designated infectious disease.
5. The employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
   1. the employee’s spouse (of the same or opposite sex, whether or not married)
   2. a parent, step-parent or foster parent of the employee or the employee’s spouse
   3. a child, step-child or foster child of the employee or the employee’s spouse
   4. a child who is under legal guardianship of the employee or the employee’s spouse
   5. a brother, step-brother, sister or step-sister of the employee
   6. a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
   7. a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
   8. a son-in-law or daughter-in-law of the employee or the employee’s spouse
   9. an uncle or aunt of the employee or the employee’s spouse
   10. a nephew or niece of the employee or the employee’s spouse
   11. the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
   12. a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
   13. any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

Examples include:

1. 1. Providing care for their child whose school or child care was closed because of a designated infectious disease (in this case, COVID‑19) or because the employee did not send their child to school or child care out of fear the child would be exposed to COVID‑19.
   2. Providing care to their child who was sick with COVID‑19 or who stayed home because of COVID‑19 protocols at the school or child care (for example, the child was showing signs of illness and the school or child care centre advised the child to isolate and get tested before returning).
      1. 1. This also includes where the employee’s child had a symptom that did not automatically require the child to stay away from school or child care, but the employee was concerned the symptom may relate to COVID‑19 and chose to keep their child home as a precautionary measure.
            Providing care or support to their child who is getting vaccinated against COVID‑19 or is experiencing side effects from the vaccine, even if the child is not under the care of a medical practitioner for those side effects.
   3. Providing care to their child because the child’s babysitter is in quarantine, isolation or sick because of COVID‑19.
   4. Providing care to a child because the summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of COVID‑19.
   5. Providing care to the employee’s 10-year-old brother, who was visiting the employee from another city without his parents, and who was unable to return home because of travel restrictions imposed to prevent the spread of COVID‑19.
   6. Providing care or support to an elderly mother who is in self-isolation due to COVID‑19.

6. The employee can be providing the care or support in Ontario or in another province, territory or country.
7. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

   For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

   There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

   What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

   This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employee’s travel back to Ontario is affected.

   This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

8. The employee is subject to an order that relates to COVID‑19 under the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (the “ROA”).

   In order to meet this condition, the order must be directed at the employee, either individually, or as part of a group.

   For example, an order that requires restaurants to close down applies to owners of restaurants. It does not apply to the employees of restaurants even though they are affected by the closure.

   However, this does apply, for example, to an employee who is subject to a ROA order that prohibits employees who work in a long-term care home from also working for another health service provider.

   For instance, an employee who has two jobs – one at a long-term care home and one at a retirement home – who is not working at one of the homes as a result of this order, is entitled to take unpaid infectious disease emergency leave from the employer that they are temporarily not working for.

   The ROA took effect on July 24, 2020. Certain orders that had previously been emergency orders under the Emergency Management and Civil Protection Act (EMCPA) were continued as orders under the ROA on that date.

   Note that if an EMCPA order was directed at an employee (either individually or as part of a group) and, as a consequence, the employee was not performing the duties of their position between March 17, 2020 and July 24, 2020, they were entitled to take declared emergency leave or unpaid infectious disease emergency leave.

   During the COVID‑19 period (March 1, 2020 to July 30, 2022), 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 unpaid infectious disease emergency leave. See the “COVID‑19: Temporary changes to ESA rules” chapter for more information.

An employee’s entitlement to an unpaid IDEL continues as long as any of the above conditions/specified reasons continue to apply to the employee.

It remains unclear whether an employee on Deemed IDEL who was not recalled to work after July 30, 2022 was constructively dismissed at common law.

*Please note that paid IDEL will remain available to employees up until March 31, 2023.