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On May 29, 2020, the Ontario government published O. Reg 228/20: Infectious Diseases Emergency Leave (the “Regulation”), a regulation under the Employment Standards Act, 2000 (the “ESA”).

The changes under the Regulation apply through the “COVID-19 Period” which has been defined as the period from March 1, 2020, until six (6) weeks after the end of Ontario’s State of Emergency. Ontario’s State of Emergency is currently set to expire on June 30, 2020, subject to further review.

The following are the top 3 things to know about the changes to termination:

1. Employees who are on a temporary layoff because of COVID-19 are now on an Infectious Disease Emergency Leave instead

Under the ESA, employment for employees on a temporary layoff is deemed to have been terminated after thirteen (13) weeks, which means they would then become entitled to termination pay (and financial support to find another job). This new law takes away that right from employees. 

Instead, employers can now keep people on unpaid leave without consequence. It essentially provides employers with the right to defer termination pay indefinitely. Employers also have no obligation to recall the employee to their previous role. Instead, this change simply provides employers with an extension to avoid providing employees with termination pay until after the Ontario government determines that the COVID-19 emergency period has passed.   

2. A temporary reduction of hours or wages due to COVID-19 will not be considered a constructive dismissal under the ESA

The new Regulation also represents a dramatic shift from the previous laws aimed at protecting active employees. Specifically, before COVID-19, employers were not allowed to unilaterally change an employee’s pay or hours without being deemed to have triggered a termination of their employment. An employee would specifically have been able to claim constructive dismissal, meaning that they would be provided with financial compensation for the damage, and support to find another job. 

The changes provide more power to employers to adjust employee hours, wages, or any other significant aspect of a person’s job or role. This means that an employer can temporarily reduce or eliminate an employee’s hours of work and wages for reasons related to COVID-19 without triggering a constructive dismissal under the ESA.

Given this, employees are no longer likely to succeed in such a claim with the Ministry of Labour, for events occurring during the provincial emergency period. Specifically, any complaints brought to the Ministry of Labour that are made on this basis will be dismissed automatically.

This does not apply if the changes are permanent. If this is the case, traditional remedies still apply.

3. Employees on Infectious Disease Emergency Leave will have a right to return to their previous positions

The changes to the law state that an employee on Infectious Disease Emergency Leave is on a job-protected leave. This means that it is expected that once the COVID-19 emergency period has passed, the employer should return the employee to their previous position (or, if that job no longer exists, a reasonably comparable position). The leave will end six (6) weeks after the end of the State of Emergency in Ontario.

If an employee is dismissed during the leave period, they may be able to seek remedies, including reinstatement.

While an employee is on job-protected leave, that does not mean that the employee’s employment may not be terminated at all. This is because the protection only prevents an employer from terminating an employee’s employment for reasons related to the leave. A legitimate restructuring or a permanent closure of the workplace could still result in an enforceable termination.

Considerations

The changes make it clear that an employee’s ability to act under the ESA over past layoffs or job changes are limited. While this is the case, common law remedies for constructive dismissal and illegal layoffs remain an option. These remedies may provide for significantly more than what a former employee may be able to recover from the Ministry of Labour.

If you have any questions relating to a temporary layoff, termination, COVID-19 or how this new Regulation may impact your employment circumstances, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.


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