On December 17th, 2020, the Province of Ontario announced that the infectious disease emergency leave (“IDEL”) will be extended again until July 3rd, 2021.
That is welcomed news for employers in Ontario.
As you will recall, first introduced last June, the IDEL regulation enacted under the Employment Standards Act, 2000 (“ESA”) deemed employees previously on a temporary layoff for COVID-19 reasons to be on a job protected leave of absence. That deemed leave of absence would have otherwise expired effective January 2nd, 2021.
Importantly, the IDEL regulation serves to suspend deemed termination and constructive dismissal for ESA purposes. It provides employers with temporary relief from liability for notice, termination pay and statutory severance under the ESA.
Employees currently on IDEL will remain on a leave of absence (with the right to reinstatement) until July 3rd, 2021 (unless recalled to active employment sooner). At that time, regular ESA rules regarding lay-off, deemed termination and constructive dismissal will resume. Employers will then need to consider these options:
- Recall the employee to active employment;
- Place the employee on a temporary layoff (up to 13 or 35 weeks upon conditions); or
- Consider termination (with notice, termination pay and/or severance) if the employee’s position (job function) has been eliminated for bona fide business reasons and there is no comparable position to offer.
While the extension does provide relief under the ESA, employers need to remember that an employee may still challenge layoff and assert a constructive dismissal claim under common law principles. It remains unclear how our courts will respond to those claims in the context of a global pandemic. That said, in our view, it would be incongruous for a court to find that the very circumstances that constitute a leave of absence (IDEL) under the ESA could, at the same time, constitute constructive dismissal at common law. At a minimum, the actions of the Province of Ontario further recognize the severe economic consequences posed by COVID-19 for employers across the province.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.
