COVID-19 infectious disease emergency leave extended in Ontario until January 1, 2022

On September 16, 2021, the Ontario Government extended the “COVID-19 Period” and the temporary measures introduced by O.Reg. 228/20: Infectious Disease Emergency (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”) until January 1, 2022. The temporary measures introduced by the Regulation were previously set to end on September 25, 2021.

In May 2020, the government of Ontario introduced the Regulation in response to the COVID-19 pandemic. This Regulation amended provisions of the ESA that related to Infectious Disease Emergency Leave, temporary layoffs and deemed terminations of non-unionized employees. The Regulation provides employers with temporary relief from the notice of termination and severance provisions of the ESA during the COVID-19 period.

During the COVID-19 period, if an employer temporarily reduced or eliminated a non-unionized employee’s work hours because of COVID-19, the employee is “deemed” to be on a job-protected unpaid infectious disease emergency leave.

During the COVID-19 period (March 1, 2020 to January 1, 2022):

• A non-unionized employee whose employer has temporarily reduced or temporarily ‎eliminated their work hours for reasons related to COVID-19 is deemed to be ‎on a job-protected unpaid infectious disease emergency leave.‎
• A non-unionized employee is not considered to be laid off if their employer ‎temporarily reduces or temporarily eliminates their hours of work or wages for ‎reasons related to COVID-19.‎
• A non-unionized employee is not considered to be constructively dismissed under ‎the ESA if their employer temporarily reduces or temporarily eliminates their ‎hours of work or wages for reasons related to COVID-19.‎

After the COVID-19 period (beginning on January 2, 2022):

• Employees will no longer be deemed to be on unpaid infectious disease emergency leave.
• The ESAs regular rules around constructive dismissal will resume. This means a significant reduction or elimination of an employee’s hours of work or wages may be considered a constructive dismissal under the ESA, even if it was done for reasons related to COVID-19.
• The ESAs regular rules around temporary layoff will also resume. For practical purposes, an employee’s temporary layoff clock re-sets on January 2, 2022. Subject to certain exceptions, a temporary layoff can last no more than thirteen (13) weeks in any period of twenty (20) consecutive weeks, after which the temporary layoff will be deemed a termination of employment. The employer will then be subject to the notice of termination and severance pay provisions of the ESA.

The extension of the temporary measures introduced under the Regulation (and, specifically, the COVID-19 Period) from September 25, 2021 to January 1, 2022 is significant for those employers who have temporarily reduced or eliminated employees’ hours of work or temporarily reduced employees’ wages, or who intend to do so, during the COVID-19 Period in response to the COVID-19 pandemic.

For further information, 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.‎

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.