In response to the unprecedented COVID-19 pandemic, the Ontario government passed a regulation that changed some Employment Standards Act, 2000 (“ESA”) rules during the “COVID-19 period.” The COVID-19 period defined in the regulation was scheduled to end on September 4, 2020. But the government has now extended the Infectious Disease Emergency Leave in Ontario to January 2, 2021.
During the new COVID-19 period from March 1, 2020, to January 2, 2021, a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 is:
- Deemed to be on an unpaid but job-protected Infectious Disease Emergency Leave;
- Not considered to be laid off under the ESA, and none of their weeks off work (or with less work) count towards the deadline for a temporary layoff under the ESA; and
- Not considered to be constructively dismissed under the ESA if their employer temporarily reduces or eliminates their hours of work or wages for reasons related to COVID-19. This means that employees will not be entitled to termination pay or severance pay under the ESA even if they experience a significant reduction or elimination of their hours of work or wages, so long as the reduction or elimination was for reasons related to COVID-19.
Beginning on January 3, 2021, after the COVID-19 period is scheduled to end,
- Employees will no longer be deemed to be on Infectious Disease Emergency Leave in Ontario, regardless of whether they have returned to active work,
- The ESA‘s regular rules and timelines for a temporary layoff resume. This means that an employee’s temporary layoff clock under to the ESA re-sets on January 3, 2021, and
- The ESA‘s regular rules around constructive dismissal resume. This means a significant reduction or elimination of an employee’s hours of work or wages can constitute a constructive dismissal, entitling the employee to termination pay, and potentially severance pay under the ESA, even if the reduction or elimination was related to COVID-19.