On June 1, 2020, the Ford government introduced amendments to the Employment Standards Act (ESA), the governing statutes that form Ontario’s employment laws. The amendments took the form of O. Reg. 228/20: Infectious Disease Emergency Leave (“IDEL”). IDEL was enacted by the Ontario government as a measure to furlough (e.g. “layoff”) employees who may or may not have contracted COVID-19. The legislation allows employers to continue temporary layoffs for a maximum of 51 and 9/10ths of a week. On the 52nd week of layoff, you are theoretically deemed entitled to a severance package.

Although infection rates in Ontario seem to be levelling off, the province is opening slowly and in multiple phases by region. Some employees are still on leaves or on temporary layoffs since the emergency measures began.

Amendments to Ontario’s Employment Laws

The amendments primarily accommodate employers and the financial woes they are experiencing due to COVID-19. Existing statutes would have put them between a proverbial ‘rock and a hard place’. It has also changed for employees on temporary layoffs. These changes apply to full-time and part-time workers and remain retroactive from March 1, 2020.

The law allowed employers to extend layoffs to 52 weeks. They had to come to an agreement with you about the terms of your extended layoff. You remained an employee of the organization with full entitlements to your benefits and seniority. Without this agreement, you automatically had the right to seek termination pay due to a constructive dismissal.

The new emergency disease laws eliminated much of this. Employers no longer have to recall laid-off employees after 13 weeks to their previous position. Instead, they can legally transition you from a temporary layoff to an unpaid Infectious Disease Emergency Leave. Furthermore, employers do not have to continue employee benefits. The amendments also removed your ESA entitlements to a constructive dismissal, but not your constructive dismissal rights before a court judge.

Ontario’s Employment Laws are Pro-Employee

To date, courts have weighed in on three occasions. Two decisions have found in favor of an employee and one have not. In the pro-employer case (Taylor v. Hanley Hospitality) the employer operated several Tim Hortons restaurants and some of its storefronts were ordered closed by the province’s COVID-19 laws.

The court used common sense that an employee’s layoff would end once the pandemic was at an end. Employee’s are therefore on a protected leave under the Ford government’s emergency disease regime and its laws are a complete code of laws on employee’s rights.

The court said to give employee’s rights during non-COVID times would be contrary to the Government’s plan. Accordingly, it found that displaced employees’ had no rights to be rendered from a judge.

At first glance, this will come as a terrible blow and a step backwards for employee rights in Ontario. However, we counsel employees not to lose hope. Ontario’s employment laws still protect you and remain firmly pro-employee as they were in 2020.

Here’s why:

  1. The present changes to the law are temporary and will expire on September 25, 2021. Anyone on IDEL must remain vigilant about their employment status. Your employer can only rely on these provisions for COVID-19 related circumstances.
  2. On infectious disease layoff, you can still claim EI and any other government financial support.
  3. If IDEL was enacted as a “leave”, then sick and paternity leaves are considered “protected” and entitling you to be recalled to your job. If your job is terminated during or shortly after returning from such leaves of absence, you may have rights against your employer at the Provincial or Federal courts.
  4. Most importantly, the law continues to protect employees facing terminations. The Ford government has temporarily kneecapped employee rights under the ESA only. However, Ontario employees always received a much superior second layer of protection under our system of common laws, and they remain unchanged.

No Recall Date

We encourage laid-off employees to stay in touch with your employers about wages they owe you as well as your reinstatement date. You should also apply for federal government income replacement programs. In addition, the federal government has passed the Canada Emergency Wage Subsidy (CEWS) bill. If your employer qualifies, they will receive a subsidy to cover a portion of your wages. Accordingly, you may inquire about your entitlements under this program.

Terminations

If your employer neglects to recall you, or simply terminates your employment without any severance package, then we encourage you to contact us. We will advise you on strategic next steps to maneuver through these circumstances. It is very important that you obtain clarity about your reinstatement or, in the event of job termination, an understanding of your rights about severance packages.

The law requires employers to offer termination pay commensurate with your circumstances. If you have already received termination documents, then have them vetted by a lawyer before you sign them.

An economic downturn presents employers with an opportunity to clean up shop, issue layoff notices in bad faith to save on payroll, while also avoiding the butcher’s bill of termination packages.

Legal Advice

One’s job and flow of income is a leading cause of stress within Canadian households. Financial problems often result in a slew of other issues, including mental health illness. Contact us for advice as employment law adapts to the pandemic.

Lecker & Associates has successfully represented employees for over 35 years. If you believe your employer has breached your rights during the COVID-19 pandemic, contact us.

Ontario’s employment laws are built on a strong foundation that includes layers of precedents. Our progressive history of common laws remains strongly pro-employee. Your rights cannot be taken away by unilateral political decree so easily.