Monthly Archives: August 2020

Canada and Ontario extend benefits, assistance and orders

August 21, 2020

The governments of Ontario and Canada both announced extensions yesterday to orders and benefits programs introduced in response to COVID-19 and its effects on the economy and employment. The federal government also announced changes to the Employment Insurance (EI) Program as well as three new benefits that will extend through the next year.

I am providing a summary of the provincial and federal announcements for you as well as the full text of the Ontario government News Release and appropriate links to the Government of Canada website.

Ontario
The provincial government has extended most orders under the Reopening Ontario Act (ROA) passed on July 21, 2020, which was in turn passed to ensure certain measures remained in place when the provincial Declaration of Emergency came to an end.

As I have advised previously, to a large extent these are housekeeping matters in that the ROA orders can be extended for up to 30 days at a time, or, alternately, can be ended.

All orders under the ROA have been extended to September 22, 2020, with the following exceptions:

  • The Education Sector order will end on August 31, 2020.
  • The Limitation Periods order will end and suspended time periods will resume running on September 14, 2020.
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A full list of continuing orders is in the text of the News Release below.

Canada
The federal government will extend the Canada Emergency Response Benefit (CERB), make changes to the Employment Insurance (EI) Program and introduce three new recovery mechanisms: the Canada Recovery Benefit, Canada Recovery Sickness Benefit and Canada Recovery Caregiving Benefit.

Extension of the Canada Emergency Response Benefit (CERB)
The CERB will be extended by an additional four weeks to a maximum of 28 weeks, meaning eligible recipients can access CERB until the end of September. At that point, qualifying recipients will be transitioned to either the extended EI program or the proposed Canada Recovery Benefit, both outlined below.

NOTE: The 4-week extension of the CERB and temporary changes to the EI program can be enacted via regulatory changes, however the Canada Recovery Benefit, as well as the other new benefits outlined below, will require legislation to be passed by Parliament. Finance Minister Chrystia Freeland indicated legislation will be tabled once Parliament resumes on September 23, 2020.

Changes to the Employment Insurance (EI) Program
As of September 27, the federal government will be implementing a simplified Employment Insurance (EI) program for one year.

The following measures will be added to help individuals access EI benefits more easily:

  • individuals who receive EI will be eligible for a minimum benefit rate of $400 per week, or $240 per week for extended parental benefits;
  • the threshold of work hours required to qualify will be lowered to a minimum of 120 hours; and,

EI will be extended to at least 26 weeks of regular benefits.
In addition, the government will freeze the EI insurance premium rates for two years.

New Income Support Benefits
With the assumption that the legislation will be passed with the resumption of Parliament, the three new recovery mechanisms will be effective for one year beginning September 27, 2020.

Canada Recovery Benefit

  • Provides a benefit amount of $400 per week for up to 26 weeks to workers who are not eligible for EI, mainly the self-employed and those working in the gig economy.
  • As with individuals on EI, recipients will be able to earn more income while receiving the benefit and will have access to employment and training tools and services.

Canada Recovery Sickness Benefit

  • Provides $500 per week, for up to two weeks, for workers who are unable to work because they are sick or must self-isolate due to COVID-19.
  • This benefit would be available only to individuals without paid sick leave through their employer.

Canada Recovery Caregiving Benefit

  • Provides $500 per week, for up to 26 weeks per household.
  • To be eligible individuals must have been unable to work for at least 60% of their normally scheduled work within a given week because they must provide care to a child or a family member with a disability or a dependent.

The details on each of these three new programs can be found on this page Government of Canada website: Supporting Canadians Through the Next Phase of the Economy Re-opening: Increased Access to EI and Recovery Benefits.

News Release

August 20, 2020

Ontario Extends Orders Under the Reopening Ontario Act, 2020

Extensions needed to address ongoing risks of COVID-19 as province reopens

Ministry of the Solicitor General

TORONTO — The Ontario government, in consultation with the Chief Medical Officer of Health, is extending orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA). The extensions provide the government with the necessary flexibility to address the ongoing risks and effects of the COVID-19 outbreak and ensure important measures remain in place to protect vulnerable populations, such as seniors, people with developmental disabilities and those with mental health and addiction issues.

All orders under the ROA have been extended to September 22, 2020, with the following exceptions:

“We’ve seen great progress in our fight against COVID-19 in recent weeks, but now is not the time to let our guard down,” said Solicitor General Sylvia Jones. “We must continue safely and gradually down the path to recovery while tackling the ongoing effects of this pandemic. We’re conducting an ongoing review and assessment of all orders to determine if they are still necessary and will relax restrictions or lift orders when it is safe to do so.”

On July 21, 2020, the Ontario Legislature passed the ROA to ensure important measures remained in place to address the sustained threat of COVID-19 once the provincial Declaration of Emergency came to an end. Orders, made under the Emergency Management and Civil Protection Act (EMCPA) that were in effect when the ROA came into force, were continued under the new act for an initial 30 days. Under the ROA, orders can be extended for up to 30 days at a time.

The government will continue to review all orders and will report on order extensions to the newly created Select Committee on Emergency Management Oversight.

The following orders under the ROA have been extended until September 22, 2020:

Important timing implications for Employers with the end of Ontario’s declared emergency

August 5, 2020

Important timing implications for Employers with the end of Ontario’s declared emergency

On July 24, 2020, Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 came into force and the declared emergency in Ontario came to an end.

As I advised last week, the purpose of Bill 195 is to allow most orders made under sections 7.0.2 and 7.1 of the Emergency Management and Civil Protection Act to remain in force despite the end of the declared emergency. These orders remain in force for 30 days (until August 24, 2020), but can be extended for additional 30 day periods if necessary. 

While the extension of these orders has little effect on workplaces in general, the end of the declared emergency does affect leaves of absence available under the Employment Standards Act, 2000 (ESA).

There are three types of leave that may have been utilized over the past few months, and it is important that you be aware of the differences and timing implications of each.

Emergency Leaves of Absence and Infectious Disease Emergency Leave (IDEL)

The ESA of 2000 provides for a declared emergency leave of absence, which generally requires a state of emergency to be in effect. 

On March 19, 2020, with the onset of the COVID-19 pandemic, the government of Ontario passed Bill 186, the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. 

This amendment introduced the Infectious Disease Emergency Leave (IDEL) in order to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or to those who needed to be away from work to care for children because of school or day care closures or to care for other relatives.

On May 29, 2020, as the various impacts of COVID-19 became evident, a further regulation was introduced specifically amending the layoff provisions of the ESA. 

This regulation stated that any non-unionized employee whose hours were temporarily reduced or eliminated, or whose wages were temporarily reduced or eliminated for reasons related to COVID-19 was deemed to be on IDEL as of March 1, 2020.

These amendments have resulted in a situation where entitlements may have been initiated under differing rules and regulations, and hence expire at different times.
It is important that you understand which leave of absence is being used, and be aware of the applicable ending date.

Ending of Entitlements

Since the province’s declared emergency ended on July 24, 2020,  employee entitlement to the ‘standard’ emergency leave of absence  – that is the leave of absence of the original ESA (2000) – effectively ended on July 24, 2020.

However, entitlement to IDEL is not dependent on the existence of a state of emergency, it is premised on COVID-19 being designated as an infectious disease under the ESA. 

At the time of the Amendment, on March 19, the government stated that leave would remain in place as long as COVID-19 remains designated as an infectious disease emergency by regulation and the employee remains unable to attend at work due to certain circumstances and criteria. 

COVID-19 does remain designated an infectious disease emergency and employees who meet the qualifying circumstances are still entitled to the leave despite the end of the overall declared emergency. (I have listed the circumstances at the end of this email.)

The regulations of May 29, however, specifically address layoffs and the reduction or elimination of hours or wages due to COVID-19 related circumstances. For non-union employees who are deemed to be on IDEL leave under this regulation, the period is defined as beginning on March 1, 2020 and the leave ends September 4, 2020 – six weeks after the day the declared emergency ended on July 24, 2020.

Implications for Employers

It is unlikely that employees utilized the ‘standard’ declared emergency leave under the ESA and that their leave ended July 24 with the declaration of the end of the emergency. Please contact me if you require clarification on this.

It is more likely that the IDEL under the May 29 regulations addressing layoffs has been utilized, or the IDEL for some employees who have been personally affected by COVID-19.

The end of the deeming rule on September 4, 2020, means that the usual rules regarding temporary layoffs under the ESA will apply again. Employees who continue to experience reduced hours or wages after September 4, 2020, could attempt to claim that their employment has been terminated and assert various claims for compensation. 

This places employers operating at a reduced capacity due to COVID-19 at significant risk if appropriate steps have not been taken to address the temporary lay-off provisions of the ESA.  

I advise you to examine your current operational needs and, if able, take steps to recall workers back to work or adjust current salary reductions before September 4, 2020. 

After September 4 the employee(s) can be placed on a traditional statutory layoff, if necessary, under which the temporary layoff must not last more than 13 weeks in a 20 consecutive week period.

As I mentioned, for employees who have been or are being affected by COVID-19 personally, the IDEL may still apply if they are unable to attend at work due to one of the circumstance outlined below:

  • The employee is under medical investigation, supervision or treatment for COVID-19.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  • The employee is in isolation or quarantine in accordance with public health information or direction.
  • The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.
  • The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
  • The employee is prevented from returning to Ontario because of travel restrictions.
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Employees can also utilize this leave to care for the following individuals:

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  • A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
  • Any individual prescribed as a family member for the purposes of this section.