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:

• The employee’s spouse.
• A parent, step-parent or foster parent of the employee or the employee’s spouse.
• A child, step-child or foster child of the employee or the employee’s spouse.
• A child who is under legal guardianship of the employee or the employee’s spouse.
• A brother, step-brother, sister or step-sister of the employee.
• A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
• A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
• A son-in-law or daughter-in-law of the employee or the employee’s spouse.
• An uncle or aunt of the employee or the employee’s spouse.
• A nephew or niece of the employee or the employee’s spouse.
• The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
• 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.