Will the detonator be set?

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 If and when the deemed IDEL ends it will be a game changer for employers, employees, and the courts in Ontario, as the detonator will be set for both parties to assess the viability of their ongoing employment relationship. Photo credit: Pexels/Sora Shimazaki

 

As you may recall from my earlier articles, there is paid (three days) and unpaid Infectious Disease Emergency Leave (“IDEL”) under the Employment Standards Act, 2000 and its regulations (collectively the “ESA) in response to the COVID-19 pandemic. 

As you may also recall, the unpaid has two versions, including the regular and the “deemed’ IDEL. The deemed IDEL is arguably the more important of what I will refer to as the three forms of IDEL; it is and always has been a ticking time bomb without its detonator set.     

While all three versions of IDEL are temporary relief measures, deemed IDEL was the stopgap enacted to deem temporary, unpaid layoffs from work as well as reductions to an employee’s regular hours of work due to the pandemic that would otherwise have constituted a constructive dismissal or a deemed termination once the prescribed time under the ESA expired under the normal operation of the ESA to be deemed IDELs. This version has perplexed the Ontario Courts and has resulted in much debate as to whether an employee’s absence from work (and pay) constitutes a constructive dismissal under the common law and trigger entitlements to reasonable notice.      

The Latest:

As you may also recall, two of the three temporary relief measures of the paid and deemed IDELs were each scheduled to end on July 30, 2022.

What we know so far is that on July 21, 2022 the Ontario government preemptively extended the availability of the entitlement to the paid to March 31, 2023 with O. Reg. 464/22 but it has not done the same for the unpaid IDELs. Meaning employees may continue to claim reimbursement of their paid IDEL through their employers of up to $200.00 per day through WSIB for prescribed COVID-19 related reasons.    

Regular IDEL Unaffected by Any Changes to the Paid and Deemed IDELs:

The regular unpaid IDEL will continue for as long as COVID-19 is designated as an “infectious disease” by O. Reg. 228/20. There is currently no specified time limit on that designation.

This means that employees will continue to be able to go out on the regular unpaid IDEL when they are not performing work for any of the prescribed reasons connected to COVID-19. These include the following relatively short-term absences from work where the employee is:

  1. Under individual medical investigation, supervision, or treatment.
  2. Subject to an order of a medical officer of health or a court under the Health Protection and Promotion Act.
  3. In quarantine, isolation, or subject to a control measure undertaken under the information or direction of a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or a board of health.
  4. Directed by their employer to stay at home because of concerns that the employee might expose other individuals in the workplace to COVID-19.
  5. Providing care to prescribed individuals, including because of closures of schools and daycares.
  6. Directly affected by travel restrictions preventing their return to Ontario.
  7. Any prescribed reason.

Potential Impacts of the Deemed IDEL Ending on July 30, 2022:   

If and when the deemed IDEL ends it will be a game changer for employers, employees, and the courts in Ontario, as the detonator will be set for both parties to assess the viability of their ongoing employment relationship.  

This is because the clocks will once again start ticking towards the regular deemed terminations where employees are still out on a temporary layoff or continue to have reduced or eliminated hours that would constitute a layoff or constructive dismissal under the ESA’s non-pandemic rules. The Courts won’t have to pick a lane anymore as we will be back to the normal rules (although in an altered context).  

While many employees may have already moved on if they have been out on a deemed IDEL for more than two years, some will have maintained their employment with reduced hours. Such employees will no longer be entitled to a deemed IDEL – which will cause employers and employees alike to re-evaluate the relationship and employers their staffing needs, to assess whether continued reductions signal a new reality in that they are no longer temporary, and what that means to them. Is it time to part ways?  If it is, severance and/or statutory entitlements will need to be paid where an actual, deemed termination, or constructive termination.

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