In March 2020, the government established the Infectious Disease Emergency Leave (“IDEL”) in response to the pandemic. IDEL grants employees the right to take unpaid, job-protected leave if they are not performing their jobs due to a prescribed set of reasons related to COVID-19. Employees cannot not be fired or penalized by an employer in any way for taking IDEL. On May 29, 2020, further amendments were made to the Employment Standards Act (the “ESA”). According to these amendments, the temporary elimination of or reduction to an employee’s hours of work for reasons related to COVID-19 would place the affected worker on IDEL. The end of IDEL regime was to coincide with the end of the state of emergency in Ontario.

The Ontario state of emergency was brought to an end on July 24, 2020 with the passing of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. All pre-pandemic laws and regulations regarding layoffs and terminations were scheduled to come back into force on September 4, 2020. To stave off the harmful economic impacts of reinstating these laws, law makers were asked to take swift action. On September 3, 2020, the Ontario government passed laws granting further relief from the temporary layoff provisions under the ESA. IDEL is now extended to January 2, 2021.

Under normal circumstances (where certain criteria are met), the ESA would limit a temporary layoff to 13 weeks in any period of 20 consecutive weeks or 35 weeks in any period of 52 consecutive weeks. Once the prescribed layoff ends, the layoff would become a termination under the ESA thereby obligating employers to provide their employees with termination entitlements. The extension of IDEL to January 2, 2021 will protect businesses from the costs of termination and severance pay normally required under the ESA. It will also ensure that employees retain their positions while on a deemed IDEL. Despite this extension, it is important for employers and employees not to be idle.

Prepare for the Reinstatement of the Laws Regarding Temporary Layoffs

While IDEL has been extended for the time being, there is no guarantee that another extension will be granted. As an employer, it is important to regularly communicate with your affected employees. Offer clear instructions on how their employment will be reinstated in 2021. If you expect to reinstate employment for the majority of staff, all reasonable accommodations and workplace modifications necessary to ensure a safe workplace should be established as far in advance as possible. Management and human resources teams should be consulted and a collaborative approach should be adopted.

Conversely, employees should take this time to educate themselves about the laws surrounding temporary layoffs and termination entitlements. If you expect that your employer will not be prepared to fully reinstate your employment in January 2021, then it is best for you to get ahead of that possibility.

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