Employees left reeling in their private lives by the uncertainty of skyrocketing numbers of COVID-19 cases, are continuing to be dealt a blow in the workplace by seeing the temporary roll-back of employment protections by the Government of Ontario.
On May 29, 2020 Ontario issued Ontario Regulation 228/20, which adopted the concept of Infectious Disease Emergency Leave. This leave, restricted to COVID-19 had previously been enacted on March 19, 2020, retroactive to January 25, 2020 to protect the jobs of workers directly affected by COVID-19. Regulation 228/20 was introduced to suspend those provisions of the ESA which stipulate that after an extended layoff, a non-unionized employee is deemed to be terminated, triggering payments owing to the employee for termination and, if applicable, severance pay. Simply stated, if an employer saw fit to reduce or completely eliminate the working hours of an employee, for reasons associated with the COVID-19 pandemic, that employee would be deemed to be on job-protected Infectious Disease Emergency Leave. The practical effect of this leave is to shield the employer from its obligations under a layoff, and from the constructive dismissal provisions of the ESA as they relate to such a layoff.
That regulation was time limited, and the COVID-19 period was initially defined as the period between March 1, 2020 and May 29, 2020. This termination date was then extended to July 3, 2020, September 4, 2020, and just prior to its expiry was extended once more to January 2, 2021. With the continuing second-wave spread of the pandemic, resulting in “grey zone lockdowns” in a number of regions of southern Ontario, and the December 20, 2020 declaration of a province-wide lockdown commencing December 26, 2020 to at least January 27, 2020, further extensions are inevitable.
COVID-19-related changes to the Employment Standards Act, 2000 regime include:
- non-unionized employees who see their hours of work reduced or eliminated due to COVID-19 are deemed not to be laid off, but rather on job-protected Infectious Disease Emergency Lease.
- as a result, the employment of those non-unionized employees will not be considered to have been constructively terminated under the Employment Standards Act, 2000. It is important to note that constructive termination under the common law will continue to be determined on a fact-contextual basis.
For employees, these changes are a double-edged sword. Theoretically, they are intended to protect the jobs of employees from the threat of COVID-19, however the effectiveness of the regulation in doing so will become clearer once the pandemic comes to an end, and we see how workplaces have changed. Employers are not permitted to terminate the employment of or otherwise punish an employee who takes or intends to take Infectious Disease Emergency Leave. That said, it is difficult to imagine such a termination not running afoul of the Human Rights Code of Ontario in any event.
Employers need to be mindful of these temporary changes to the Employment Standards Act, 2000, and how the common law as it relates to employment may or may not be affected by the regulation.