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On July 24, 2020, with the passing of Bill 195 (Reopening Ontario (A Flexible Response to COVID-19) Act 2020) the declared provincial state of emergency related to COVID-19 ended. Below, we discuss the implications of this change on employers with a specific focus on employees who have been laid off.

Deemed Infectious Disease Emergency Leave: What Did it Mean for Employers?

The declared state of emergency, created by a regulation under the Employment Standards Act, 2000 (the “ESA”) in March of 2020, in part allowed employers to temporarily reduce wages or hours for pandemic-related reasons without triggering a layoff or constructive dismissal under the ESA. Instead, employees were placed on deemed infectious disease emergency leave.

This temporary change resulted in employees’ temporary layoffs converting into deemed infectious disease emergency leave for the duration of the “COVID-19 period” (i.e. March 1, 2020, until 6 weeks after the end of the declared State of Emergency).

Ending the Declared State of Emergency

With the passing of Bill 195, the declared provincial state of emergency has now ended. This means, in part, that the deemed infectious disease emergency leave period will expire on September 4, 2020.

Perhaps most importantly for employers, this means that as of September 4, 2020, the standard temporary layoff rules and timing under the ESA will apply to employers who fail to restore employees’ wages and/or recall employees back to work. If employers cannot recall employees back to work or restore their wages by September 4, 2020, employees will be considered to have been terminated if laid off beyond the permitted temporary layoff timeframes under the ESA.

In short, starting September 4, 2020, the clock starts running on temporary layoffs once again. This means that employers may only be able to temporarily lay off employees for up to 13 weeks in a 20-week period, which can be extended up to 35 weeks in a 52-week period.

Infectious Disease Emergency Leave Remains in Effect

While Bill 195 has ended deemed infectious disease emergency leave, regular infectious disease emergency leave still applies. This means that employees remain entitled to leave if they cannot work for one of the following reasons:

  • The employee is under medical investigation, supervision or treatment for COVID-19;
  • The employee is following an order under the Health Protection and Promotion Act;
  • The employee is quarantining or in isolation in accordance with public health guidelines;
  • The employee has been directed by the employer to not work due to COVID-19 workplace concerns;
  • The employee needs to provide care to a prescribed individual under the ESA for a reason related to COVID-19; or
  • The employee cannot return to Ontario because of travel restrictions.

Employees will continue to qualify for a regular infectious disease emergency leave for as long as COVID-19 remains a designated “infectious disease”, as defined by the ESA.

Key Takeaway for Employers

In light of the end of the deemed infectious disease emergency leave, employers should start making decisions about whether to call their employees back to work in order to avoid/manage potential claims relating to wrongful dismissal or constructive dismissal.

This is also an opportune time for employers to review their employment agreements to ensure that they are up to date and enforceable.

If you have questions about the end of the deemed infectious disease emergency leave and its impact on your workplace please contact Toronto workplace immigration and employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.


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