The O. Reg. 228/20: INFECTIOUS DISEASE EMERGENCY LEAVE regulation was amended, on September 3rd 2020. It extends the COVID-19 period to January 2nd, 2021. The Ontario Government filed a new regulation, O. Reg. 492/20 which has extended the COVID-19 period to January 2, 2021.

Note that the definition of the COVID 19 period in O. Reg 228/20 regulation is as follows:  “COVID-19 period” means the period beginning on March 1, 2020 and ending on the date that is six weeks after the day that the emergency declared by Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act is terminated or disallowed.”

Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 received royal assent on July 21st 2020 and came into force on July 24th 2020 enacting the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. It's passing marked the termination of the COVID-19 declared emergency and the revocation of Ontario Regulation 50/20 (Declaration of Emergency) as of July 24. Therefore, the six week period beyond the end of the COVID19 period, was set to expire on Sept 4th 2020.

For now, with the amendment on September 3rd 2020 extending the COVID19 period to January 2nd 2021, it effectively allows employers to keep employees off work due to COVID reasons upto the beginning of January 2021. What this means is as follows:

During the COVID-19 period (March 1, 2020, to January 2, 2021):

• A non-unionized employee whose employer has temporarily reduced or eliminated his or her hours of work for reasons related to COVID-19 is deemed to be on a job-protected infectious disease emergency leave.
• A non-unionized employee is not considered to be laid off if his or her employer temporarily reduces or eliminates his or her hours of work or wages for reasons related to COVID-19.
• A non-unionized employee is not considered to be constructively dismissed under the ESA if his or her employer temporarily reduces or eliminates his or her hours of work or wages for reasons related to COVID-19.
• During the extended COVID-19 period, a temporary reduction or elimination in hours or wages of a non-unionized employee will not constitute a layoff or a constructive dismissal under the ESA.
• Complaints filed with the Ministry of Labour during the extended COVID-19 period 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.

After January 2, 2021:

• Employees will no longer be deemed to be on infectious disease emergency leave.
• The ESA’s regular rules around constructive dismissal are expected to resume. This means that a significant reduction or elimination of an employee’s hours of work or wages may constitute a constructive dismissal under the ESA, even if it was done for reasons related to COVID-19.
• The ESA's regular rules around temporary layoff are also expected to resume. For all practical purposes, an employee’s temporary layoff clock re-sets on January 3, 2021.

Final Thoughts:

• While these latest changes/announcements extending the COVID-19 period is welcome news for employers that need more time to re-open and return to full operations, it raises challenges for employers who have reopened businesses and who've been struggling to return employees back to work.
• Employers that have already issued layoff notices to employees based on the former September 4, 2020, COVID-19 period expiry date, will need to carefully consider their communications to employees in light of this recent development.
• Remember that the ESA provides minimum standards only. Some employees may have additional entitlements under an employment contract, collective agreement, the common law or other legislation that gives them greater rights. This is where the risk of a challenge arises if proper documentation is not maintained by the employer.
• It is also important to note that these regulations and the changes thereof, may not necessarily affect how courts apply the doctrine of constructive dismissal at common law, which is distinct from constructive dismissal under the ESA.

In closing, it's important for employers and employees to realize the importance of ample precaution, due diligence and respective responsibilities. Consider how different this post COVID playing field is from the one we’ve left behind from a few months ago.

If you’re a Beneplan client and have questions or need support on these and other people issues, please reach out to Beneplan’s HR Consultant at 1 800 387 1570 x 268 or via email at hr@beneplan.ca

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