The end of COVID-19 Declared Emergency Leave

As of today, September 4, employees will no longer be entitled to Infectious Disease Emergency Leave under the Employment Standards Act, 2000.

The Infectious Disease Emergency Leave was brought into Ontario for employees who wished to take unpaid, job protected leave, if they found they couldn’t complete their duties because of a reason related to COVID-19.

The protected nature of the leave prevented employers from threatening or penalizing employees in any way during their absence.  The leave began on March 1 2020 – ending six weeks after the day the declared emergency is terminated or disallowed.  With the declared emergency having been terminated on July 24, 2020, the regulation’s COVID-19 period is set to end on September 4, 2020 – i.e. today.

This means employers now have to seriously consider their options.         

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HRD spoke to David Whitten, senior partner at Toronto-based law firm Whitten & Lublin, who detailed the three courses of actions open to Ontario businesses.

1. Reinstate employees to their pre-Infectious Disease Emergency Leave position, if it exists, or to a comparable position if it does not, as required by the Employment Standards Act, 2000; or
2. Terminate the employees who were off on leave instead of reinstating them, but then the employer must provide an appropriate severance package; or
3. Attempt to place employees on a temporary layoff for no longer than 13 or 35 weeks as permitted by the Employment Standards Act, 2000 in the ordinary course.  We say “attempt” because the layoff may still be considered a constructive dismissal, if the employee has not signed an employment contract which authorizes a layoff. 

“Many employees likely will not be reinstated to their pre-Infectious Disease Emergency Leave position by September 4, as many businesses are not yet running normally,” Whitten told HRD.

“Lots of business just don’t require the same number of staff that they previously did.  Accordingly, we will likely see many terminations of employment on or just after September 4th, as well as employees claiming constructive dismissal when they are not recalled to work by this deadline. 

“Many employers will also put employees on a new layoff on September 4th, because any time that an employee spent on an Infectious Disease Emergency Leave in the preceding six months does not count as a period of layoff – as per Ontario Regulation 228/20 Infectious Disease Emergency Leave.”

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All these imminent changes have the propensity to put employers into a spin – either way, Whitten remarked, today will be a busy day for employment lawyers.

“Many businesses are not operating as normal due to public policy (i.e. restaurants, event venues, etc.).  It is possible that decision makers may not want to hit these businesses with high severance costs when their revenues are already down, due to circumstances totally outside their control. 

“That being said, the case law is clear that an employer’s financial difficulties doesn’t justify a lower severance payment.”