Background
Back in May, in response to the enormous economic impact of COVID-19 on both employers and employees alike, the Ontario government passed Ontario Regulation 228/20 Infectious Disease Emergency Leave. The regulation introduced temporary modifications to the Employment Standards Act, 2000 designed to help employers and employees cope with temporary business interruptions caused by COVID-19 and related restrictions. Under the regulation, non-union employees whose wages are reduced or whose hours of work are temporarily reduced or eliminated due to COVID-19 will not be considered statutorily laid off or constructively dismissed. Instead, such employees will be deemed to be on job-protected infectious disease emergency leave in respect of any time during the "COVID-19 period" that they do not perform the duties of their position. Originally, the "COVID-19 period" was scheduled to end on September 4, 2020, six weeks after the state of emergency declared by the Ontario government was terminated. The regulation was amended on September 3, 2020, to revise the expiration of the "COVID-19 period" to January 2, 2021.
Recent Announcement: "COVID-19 period" extended to July 3, 2021
Last week, the Ontario government enacted Ontario Regulation 765/20, which extended the "COVID-19 period" until July 3, 2021. What this means is that under the Ontario Employment Standards Act, 2000, a layoff until July 3, 2021, does not automatically trigger a statutory layoff or constructive dismissal. It effectively stretches the period of layoff until July 3, 2021, (unless there are further amendments) until this would occur.
This is welcome news for employers who had to make staffing determinations by early 2021. It also provides employers who are currently unable to return to normal staffing levels with more time to manage their business and staff without the concern of a deemed statutory termination. What it does not impact is a claim by an employee (who is not bound by an employment agreement allowing lay off during the term of employment) to take the position, at common law, that their employment has been constructively dismissed. As we move out of COVID-19, the courts will likely weigh in on that issue, including what liability employers may face for any period of layoff prior to a recall.
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