Availability of IDEL ended in July -but unpaid and paid IDEL still available for some

by Rhonda B. Levy, George Vassos and Monty Verlint

In May of 2020, Ontario filed O. Reg. 228/20, which provided that a non-unionized employee who did not perform their job duties during the “COVID-19 period” because their work hours were temporarily reduced or eliminated for reasons related to COVID-19, was deemed to be on Infectious Disease Emergency Leave (Deemed IDEL).  The Regulation amended layoff and constructive dismissal rules exclusively under the Employment Standards Act, 2000 (ESA), and in most cases, eliminated temporary layoffs and the risk of a constructive dismissal claim under the statute for the defined COVID-19 period.

The end date of the COVID-19 period, which commenced retroactively on March 1, 2020, was extended by regulation several times, most recently until July 30, 2022.  Accordingly, the temporary rules relating to Deemed IDEL were in effect until that date.

Since July 31, 2022, employees can no longer be on Deemed IDEL, and the ESA’s regular rules pertaining to constructive dismissal resumed. Accordingly, depending on all the facts and circumstances and applicable law, a significant reduction or elimination of an employee’s hours of work or wages could be alleged to constitute a constructive dismissal under the ESA, even if it occurred for reasons related to COVID‑19.  As well, on July 31, 2022, the ESA’s regular rules around temporary layoff resumed, i.e., for practical purposes, an employee’s temporary layoff clock was re-set on July 31, 2022.

Unpaid IDEL Continues to Be Available to Eligible Employees

Despite the changes to Deemed IDEL, employees continue to have the right to take unpaid IDEL if they are not performing the duties of their position for certain reasons related to COVID-19.  There is no specified limit to the number of days an employee can be on unpaid IDEL. 

An employee may take unpaid IDEL are if they are not performing the duties of their position for any of the following reasons:

1. The employee is under individual medical investigation, supervision or treatment related to COVID-19.
2. The employee is following a COVID‑19-related order issued under the Health Promotion and Protection Act.
3. The employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure implemented as a result of information or directions related to COVID-19, and issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or a board of health.
4. The employee is under a direction given by their employer in response to the employer’s concern that the employee might expose other individuals in the workplace to COVID-19.
5. The employee is providing care or support to specified individuals (family members) because of a matter related to COVID-19.
6. The employee is directly affected by travel restrictions related to COVID-19 that prevent them from travelling back to Ontario.

Employers may ask for “evidence reasonable in the circumstances,” “at a time reasonable in the circumstances,” to verify the unpaid IDEL but they may not require medical certificates.

Paid IDEL Continues to Be Available to Eligible Employees

Finally, as we discussed, paid infectious disease leave (paid IDEL), which requires employers to provide employees up to three days’ pay if they need to miss work for specified reasons related to COVID-19, was recently extended to March 31, 2023.  Accordingly, eligible employees may take paid IDEL and eligible employers may apply for a reimbursement of payments from the Workplace Safety and Insurance Board (WSIB), up to a maximum of $200 for up to three (3) days per employee.