Ontario Announces Further Extension of Paid and Deemed Infectious Disease Emergency Leaves
Date: December 10, 2021
On December 7, 2021, the Ontario government announced that it would be extending the program that provides eligible employees with up to three days of paid infectious disease emergency leave (Paid IDEL) until July 31, 2022 (previously set to expire December 31, 2021).
The government also announced that it would be extending the temporary relief measures from the termination and severance provisions of the Employment Standards Act, 2000 (ESA) (Deemed IDEL) until July 30, 2022 (previously set to expire January 1, 2022).
Extension of Paid IDEL
On December 9, 2021, the government filed O. Reg. 834/21 amending O. Reg. 228/20, Infectious Disease Emergency Leave (IDEL Regulation), to extend the availability of Paid IDEL to July 31, 2022.
Paid IDEL is a form of leave available under the ESA where an employee is unable to work for reasons related to COVID-19, including, for example, when an employee is under individual medical investigation, supervision or treatment, or when an employee is required to provide care or support to a specified family member. Eligible employees are entitled to a maximum of three days of Paid IDEL, although the number of days may be reduced depending on an employee’s contractual entitlements.
Employers may apply to the Workplace Safety and Insurance Board (WSIB) for reimbursement of up to $200.00 per day for three days for each employee who takes Paid IDEL. Importantly, employers are required to complete the application process within 120 days of the date on which the Paid IDEL was provided to the employee in order to be reimbursed.
For more information on Paid IDEL, see our FTR Now of May 6, 2021, Ontario Enacts Legislation to Provide Paid Leave for Reasons Related to COVID-19, as well as our FTR Now of June 1, 2021, Details about WSIB Reimbursement Process for Paid IDEL Now Available (which addresses the WSIB reimbursement process).
Extension of Deemed IDEL
The Ontario government has again extended the temporary relief measures from the termination and severance provisions of the ESA until July 30, 2022. The temporary measures are found in the IDEL Regulation, which has been amended to define the “COVID-19 period” as that period beginning on March 1, 2020 and ending on July 30, 2022.
As a result of this extension, the status quo will remain in effect until at least July 30, 2022, including the following relief measures:
- Deeming employees to be on an infectious disease emergency leave where an “employee’s hours of work are temporarily reduced or eliminated by the employer for reasons related to” COVID-19 during the COVID-19 period.
- Providing that the ESA’s usual termination and severance rules related to layoffs do not apply where an employee’s hours of work have been reduced or eliminated, or whose wages have been reduced, for reasons related to COVID-19 during the COVID-19 period.
- Deeming certain actions of an employer made in response to COVID-19—a temporary reduction or elimination of an employee’s hours of work, or a temporary reduction in an employee’s wages—not to be a constructive dismissal if they occur during the COVID-19 period.
We provided a detailed review of these measures in our FTR Now of May 31, 2020, Ontario Government Provides Temporary Relief from ESA Termination and Severance Provisions in Response to COVID-19, along with a summary review in our FTR Now of September 17, 2021, Ontario Announces Further Extension of Temporary Relief from ESA Termination and Severance Provisions. Readers are urged to review those publications for further details.
We remind readers that Deemed IDEL applies only to non-unionized employees, and not to employees represented by unions.
The IDEL Regulation amends only the ESA rules related to layoffs and constructive dismissal, and the interaction between the IDEL Regulation and the common law is complex. As of the date of writing, the case law is inconclusive on this key point. Thus, we continue to encourage employers to seek legal advice before undertaking reductions in hours or wages in relation to your employees.
Once the extended COVID-19 period comes to an end on July 30, 2022, the usual ESA rules related to layoffs and constructive dismissal will be re-engaged. Employers who are not able to fully resume operations by that time will therefore need to carefully consider how they will address their ongoing employment issues.
If you have any questions related to Paid IDEL or Deemed IDEL and their impact on your organization, please contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©