End of Ontario’s declared emergency is here: further considerations for employers flowing from Bill 195

Bill 195 brings an end to Ontario’s declared emergency, significantly affecting emergency leaves, temporary layoffs, and constructive dismissals under the Employment Standards Act, 2000 (ESA).

As stated in our July 31 legal update, Bill 195 received royal assent on July 21 and came into force on July 24 enacting the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. Along with the changes detailed in our prior update, its passing also marked the termination of the COVID-19 declared emergency and the revocation of Ontario Regulation 50/20 (Declaration of Emergency) as of July 24. Below are further considerations employers should keep on their radar as the summer approaches its end.

Emergency leaves

In March 2020, the ESA was amended to include, among other things, two types of emergency leave related to declared emergencies and infectious disease emergencies respectively. As discussed below, the end of the COVID-19 declared emergency affects each type of leave differently.

Declared Emergency Leave (DEL)

Declared emergency leave (DEL) entitles employees to a leave of absence without pay if the employee will not be performing the duties of his or her position because of an emergency declared under section 7.0.1 of the EMCPA and because of either (i) an order that applies to him or her made under section 7.0.2 of the EMCPA, (ii) an order that applies to him or her made under the Health Protection and Promotion Act, (iii) he or she is needed to provide care or assistance to an individual specified in the legislation, or (iv) such other reasons as may be prescribed. As an employee’s entitlement to DEL must be tied to a declared emergency, the end of the COVID-19 declared emergency also means an employee’s entitlement to DEL ended on July 24.

The only exception in the ESA is for employees who took DEL because of an emergency that has been terminated or disallowed and because of an order made under subsection 7.0.2(4) of the EMCPA and the order is extended under subsection 7.0.8(4) of the EMCPA. In this case, the employee’s entitlement to leave “continues during the period of the extension if he or she is not performing the duties of his or her position because of the order.” However, as discussed further below, employers should note that when contemplating requiring employees who were on DEL to return to work, consideration should be given to any overlap between DEL and infectious disease emergency leave (IDEL), as some employees may meet the criteria for a job-protected IDEL.

Infectious Disease Emergency Leave (IDEL)

Infectious disease emergency Leave (IDEL) entitles employees to a leave of absence without pay if the employee will not be performing the duties of his or her position because of one or more enumerated reasons relating to a designated infectious disease. The introduction of Ontario Regulation 228/20: Infectious Disease Emergency Leave (the regulation), designated coronavirus (COVID-19) an infectious disease under the ESA, and entitled employees to go on IDEL, by reason of COVID-19.”

Specifically, the ESA provides that an employee is entitled to IDEL if the employee will not be performing the duties of his or her position because of one or more of the following reasons related to such a designated infectious disease:

• The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
• The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
• The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
• The employee is under a direction given by his or her employer in response to an employer concern that the employee may expose other individuals in the workplace to the designated infectious disease.
• The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease concerning that individual, including, but not limited to, school or day care closures.
• The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
• Such other reasons as may be prescribed.

So long as COVID-19 continues to be a designated infectious disease under the ESA and the employee satisfies one or more of the above reasons, eligible employees remain entitled to IDEL.

Deemed IDEL

As first reported in our June 5 legal update, the regulation also prescribed a new reason for which employees would be deemed to be on IDEL. Specifically, non-unionized employees would be deemed to be on IDEL if they were not performing the duties of their position because their hours of work were temporarily reduced or eliminated for reasons related to COVID-19 during the COVID-19 period. Importantly, this means employees can only be on this deemed IDEL “during the COVID-19 period.”

The regulation defines the “COVID-19 period” as beginning on March 1, 2020, and 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. As a result, employees will no longer be entitled to this deemed IDEL after September 4, 2020.

Temporary layoffs

The regulation also brought about changes to the ESA’s temporary layoff provisions. Indeed, as highlighted in our June 5 legal update, the regulation provides that employees whose hours of work are temporarily reduced or eliminated, or whose wages are temporarily reduced, for reasons related to the designated infectious disease during the COVID-19 period, “are no longer considered to be on a temporary layoff under sections 56 (what constitutes termination) and 63 (what constitutes severance) of the ESA.”

Again, because this provision is tied to the duration of the “COVID-19 period,” it is set to expire on September 4, 2020. As such, the ESA’s standard temporary layoff restrictions are expected to come back into effect after September 4, 2020.

Constructive dismissal

For constructive dismissal, the regulation also sets out that a temporary reduction or elimination of an employee’s hours of work, or a temporary reduction in an employee’s wages, for reasons related to the designated infectious disease, does not constitute constructive dismissal under the ESA if it occurred during the COVID-19 period.

With the COVID-19 period ending on September 4, 2020, it can be expected that employers will again need to consider whether the reduction or elimination of employee hours of work, or reduction in employee wages, that occurs after this date could constitute constructive dismissal pursuant to the ESA.  Also note that the regulation may not necessarily impact how courts apply the doctrine of constructive dismissal at common law, which is distinct from constructive dismissal under the ESA.

In addition, the regulation states that complaints filed with the Ministry of Labour alleging that an employer’s temporary reduction or elimination of an employee’s hours of work, or an employer’s temporary reduction of an employee’s wages, constitutes termination or severance of employment would be deemed not to have been filed if certain conditions are met.

As stated in our June 5 legal update, one such condition is that the temporary reduction or elimination of hours of work, or the temporary reduction of wages must have occurred during the COVID-19 period. With the regulation’s COVID-19 period ending on September 4, 2020, any such complaints filed regarding a temporary reduction or elimination of hours of work, or temporary reduction of wages, occurring after September 4, 2020, should, in the normal course, be accepted as filed by the ministry.

Takeaways

In summary, employers should prepare for the following:

• DEL: As of July 24, 2020, many employees on DEL will no longer be eligible for that leave.
• IDEL: For now and up until COVID-19 is no longer designated as an infectious disease under the ESA, eligible employees on IDEL remain entitled to that leave.
• Deemed IDEL: After September 4, 2020, employees on deemed IDEL will cease to be on deemed leave.
• Layoffs: After September 4, 2020, the temporary suspension of the ESA’s standard layoff provisions is expected to end. This means that while employees may be laid off, employers must be mindful of permissible layoff periods under the ESA. To that end, it should be recalled that, under the ESA, employees who are not recalled within the permissible layoff period are generally entitled to all termination entitlements, including notice, statutory severance (if applicable), and benefit continuation. As employers know too well, this can be a costly exercise.
• Constructive Dismissal under the ESA: After September 4, 2020, it can be expected that the ministry will resume accepting constructive dismissal claims under the ESA, even if they relate to a temporary reduction or elimination of an employee’s hours of work, or a temporary reduction in an employee’s wages, for reasons related to the designated infectious disease. Employers should therefore bear in mind that reducing wages or hours of work may, in some cases, create the risk of constructive dismissal claims under the ESA.

For employers, the importance of the further above-noted considerations brought under Bill 195 cannot be understated. While the government provided significant relief for both employers and employees under the regulation, it appears the interlude in this respect is now at its end. Enhancing communication and providing affected employees with clear guidance on how their employment will be managed in the coming weeks will thus be very important to management and human resources teams in Ontario.

The authors would like to thank Rebecca Brown, summer student, for her assistance in preparing this legal update.