Remember when the Ontario government made a new regulation deeming temporarily laid off employees to be on a job-protected Infectious Disease Emergency Leave? This regulation temporarily amended the Employment Standards Act, 2000 (ESA).
According to the regulation, the temporary rules would expire six weeks after the lifting of the declaration of emergency. Since the Ontario government revoked its declaration of emergency order on July 24th, these temporary rules will expire on September 4th.
What does this mean for employers? The temporary layoff clock will resume ticking towards a termination of employment. That is, employees who had been temporarily laid off due to COVID-19 will no longer be “deemed” to be on leave come September 4, 2020. Rather, the clock will resume ticking such that once the applicable layoff period expires, their employment will be deemed to have been terminated.
Under the ESA, employees can be temporarily laid off for up to 13 weeks, and under certain circumstances, for up to 35 weeks.
Employers must be mindful of this since employees who are not recalled back to work in time will be deemed to have been dismissed, in which case the employer will be obligated to provide them with their entitlements upon termination. This could mean significant compensation depending on the wording in the employment contract (or lack thereof), the length of service, and other factors, as applicable.
In addition, since the Infectious Disease Emergency Leave is a job-protected leave of absence, employers likely have a duty to return employees to work when the leave ends. While some employers may be able to recall their workers as soon as September 4th and be “safe”, for others, it may not be feasible. Employers must also remember that they do not have an automatic right to temporarily layoff employees; the right must be explicitly written into a contract of employment, or implied based on past practice or the nature of the industry (e.g. construction).
That said, employees who are currently on the leave because of childcare obligations or increased medical risks, for example, may continue to be on leave until such time that their circumstances change or until COVID-19 stops being a designated disease under the regulation. Furthermore, they may be entitled to accommodation under human rights legislation.
If you are an employer concerned about your legal obligations and would like to learn about your options, feel free to contact us. If you are an employee concerned about protecting your legal rights and getting what you are entitled to, you can reach out to us as well.