Background

On December 9, 2021, the Ontario Government filed a regulation that extended the COVID-19 Infectious Disease Emergency Leave (“Deemed IDEL“) and the temporary measures previously introduced by O. Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (the “ESA“) until July 30, 2022. Further details of these measures were reported in our previous blog post from June 22, 2021.

On December 9, 2021, the Government also extended the temporary paid sick leave available for reasons related to COVID-19 until July 31, 2022. We reported further details on this leave in our blog post from April 30, 2021.

Deemed IDEL

The Deemed IDEL introduced the “COVID-19 Period”, which began on March 1, 2020 and was originally set to expire on September 4, 2020. The end date of the COVID-19 period has now been extended for the fifth time to July 30, 2022. This extension means that non-unionized employees who are not performing their duties, are working reduced hours, or are receiving reduced wages due to COVID-19 can remain on Deemed IDEL, without an employer’s termination and severance obligations under the ESA being triggered. If employers temporarily reduce or eliminate an employee’s hours of work or reduce their wages, the Deemed IDEL allows these actions during the COVID-19 period to not be considered a constructive dismissal under the ESA.

Paid COVID-19 Sick Leave

The Government introduced the temporary sick leave on April 29, 2021, requiring employers to provide employees with up to three paid days for reasons related to COVID-19. These reasons can include when an employee is waiting for COVID-19 test results or when an employee is required to care for a family member experiencing COVID-19 symptoms, for example. The temporary leave, also known as the Ontario COVID-19 Worker Income Protection Benefit, was originally set to expire on December 31, 2021, but has now been extended to the summer. This means that employers are able to continue seeking reimbursement from the Workplace Safety and Insurance Board (the “WSIB“) for up to $200 per day if eligible employees are taking the leave.

Key Takeaways

If the COVID-19 period ends this coming summer, the ESA’s typical rules on layoffs and constructive dismissals will be re-triggered. As a reminder, employees’ common law rights continue to apply, as the IDEL regulation only amends the statutory rules on layoffs and constructive dismissals.

Additionally, employers should keep in mind that employees are still eligible to take the paid COVID-19 sick days in addition to the unpaid emergency leave. However, employers that already offer at least three paid sick days to employees are not required to provide employees with an additional three days of paid leave. The leave is meant to top-up entitlement when an employer provides less than three paid sick days. As a reminder, employers should file applications for reimbursement within 120 days of the date on which paid leave was provided to an employee.

Restrictions originally put in place as a temporary measure are now still engaged almost two years later. With new variants of concern and climbing COVID-19 infection rates, workplace laws and minimum protections are continuously evolving.

We will continue to monitor changes and provide updates accordingly.