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19 July 20222 minute read

Ontario’s COVID-19 “Deemed” Infectious Disease Emergency Leave ‎expected to end on July 30, 2022‎

Beginning on July 31, 2022, non-unionized employees in Ontario whose hours of work were temporarily reduced or eliminated, or whose wages were temporarily reduced, because of COVID-19 will no longer be:

  • “deemed” to be on infectious disease emergency leave, or
  • exempt from rules regarding temporary layoffs and constructive dismissal,

by virtue ‎of O.Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (the “ESA”).

For practical purposes, this means that beginning on July 31, 2022:

  • The ESA’s rules regarding temporary layoffs and constructive dismissal will resume.
  • Subject to certain ‎‎exceptions, temporary layoffs will last no more than 13 weeks in any period ‎‎of 20 consecutive weeks, after which the temporary layoffs will be “deemed” to be ‎‎terminations of employment under the ESA.
  • A ‎significant ‎reduction to, or the elimination of, an employee’s hours of work or wages may be ‎considered a ‎constructive dismissal under the ESA, even if implemented temporarily for reasons ‎related to ‎COVID-19.‎

In addition, the requirement to provide employees with up to three (3) days of paid infectious disease emergency leave will end on July 31, 2022.

The end of Ontario’s deemed infectious disease emergency leave is significant for employers that have temporarily reduced or eliminated their employees’ hours of work, or temporarily reduced their employees’ wages, because of COVID-19. Those employers should carefully consider and plan for their obligations and options with respect to such employees before July 31, 2022, including by:

  • identifying all non-unionized employees who will be on a temporary layoff beginning July 31, 2022;
  • determining the anticipated length of each employee's temporary layoff; and
  • determining when the employment of each employee on a temporary layoff will be terminated and/or severed under the ESA (thereby triggering an entitlement to termination and/or severance pay under the ESA) if the employee is not recalled to work.‎

For further information and to avoid the risk of inadvertently terminating and/or severing the employment of an employee under the ESA by failing to recall the employee to work, please consult our ‎Coronavirus Resource ‎Centre or ‎contact any member of our DLA Piper Canadian Employment and ‎Labour Law Service ‎Group, who will ‎ensure that you are acting upon the most up-to-date information.‎

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