On March 17, 2020, the provincial government declared an emergency Order due to Covid-19. The declared emergency was extended, most recently until July 24, 2020. During this time, the Ontario government made changes to the Ontario Employment Standards Act which permitted employers to cite Covid-19 as the basis to temporarily reduce wages or hours of work and to lay employees off. The effect of these changes was that employees whose hours of work were reduced or eliminated were deemed to be on an infectious disease emergency leave. The “Covid-19 Period” was defined as beginning on March 1, 2020 and ending on the date that is 6 weeks after the day that the emergency declared by Order in Council 518/2020… is terminated.”

As of July 24, 2020, the Order declaring the emergency was revoked. This directly impacts employees that were laid off, or whose wages or hours were reduced, since March 1, 2020.

Declaration of emergency revoked – how will this affect employees in Ontario?

1. Since the declared emergency Order was revoked, affected employees will continue to be on the infectious disease emergency leave until September 4, 2020.

2. On September 4, 2020, employers will have to:

a. Reinstate employees to their pre-leave position, if it exists, or to a comparable position if it does not; or

b. If the reason that an employer cannot reinstate the employee is unrelated to Covid-19 (which will depend on the circumstances), then employers can terminate employees instead of reinstatement but must provide an appropriate severance package; or

c. Attempt to place employees on a temporary layoff for no longer than 13 or 35 weeks. (note we say “attempt” to place employees on a temporary layoff as this is generally not permitted and may be considered a constructive dismissal)

3. Under the legislation, a temporary layoff can last up to 13 weeks or up to 35 weeks in some circumstances. Once these periods expire, the layoff is deemed to be a termination. Once there is a termination, employees are entitled to termination pay, and in some circumstances, severance pay, and in most cases an additional separation payment.

4. If employers continue to reduce wages and hours after September 4, 2020, this would likely trigger a constructive dismissal under either the ESA or the common law, which will likely entitle an employee to claim damages while looking for another job.

It is important as well to note that:

• Rights an employer and employee have under Employment Standards Act are not necessarily the full picture. Employees also have rights that arise through their contracts and due to the common law (“judge-made”) law.
• A temporary layoff, even if permitted by the ESA, may still allow an employee to claim damages for constructive dismissal, depending on the circumstances.

Whitten & Lublin, Employment Lawyers is one of Canada’s Premier Workplace Law Firms. If you would like more information about how these changes affect your employee rights, please contact us online or by phone at 416-640-2667.

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