Employers Take Note: Changes to the Infectious Disease Emergency Leave

Employers should be aware of imminent changes to an employee’s entitlements to the Infectious Disease Emergency Leave (IDEL), made under the Employment Standards Act, 2000 (ESA) in response to the COVID-19 pandemic.

On July 21, 2022, the Ontario government announced that it is extending entitlement to the three days of paid IDEL (Paid IDEL) for eligible employees until March 31, 2023 (previously set to expire July 31, 2022).

In contrast, after a number of extensions (most recently in December 2021), deemed IDEL (Deemed IDEL) is scheduled to expire on July 30, 2022, as set out in O. Reg. 228/20 made under the ESA. If O. Reg. 228/20 is amended to extend Deemed IDEL, we will send a further update.

In this FTR Now, we provide further information about these changes.

Paid IDEL Extended

On July 21, 2022, the government filed O. Reg. 464/22 amending O. Reg 228/20 to extend the availability of Paid IDEL to March 31, 2023.

Paid IDEL is a form of paid 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 have been reduced depending on an employee’s contractual entitlements.

Employers seeking reimbursement for Paid IDEL may continue to submit claims to the Workplace Safety and Insurance Board 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.

Deemed IDEL Ending

Unless otherwise extended, Deemed IDEL, the temporary relief measures from the termination and severance provisions of the ESA, will end effective July 30, 2022. Several important consequences will result from the expiry of Deemed IDEL:

Employees will no longer be entitled to Deemed IDEL where their “hours of work are temporarily reduced or eliminated by the employer for reasons related to” COVID-19.
The termination and severance rules under the ESA related to layoffs will again apply where an employee’s hours of work have been reduced or eliminated, or an employee’s wages have been reduced, for reasons related to COVID-19.
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—will no longer be deemed not to be a constructive dismissal.

Employers who have been utilizing any of the above relief measures should consider if any action is required based on this change in status.

Unpaid IDEL Remains in Place

Employers should note that the changes outlined above to Deemed IDEL do not end Unpaid IDEL, which will continue to be available as an ESA leave 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.

Employees will continue to be able to access Unpaid IDEL where the employee will not be performing work for one or more of the following reasons in relation to COVID-19:

The employee is under individual medical investigation, supervision or treatment.
The employee is subject to an order of a medical officer of health or a court under the Health Protection and Promotion Act.
The employee is in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health.
The employer directs the employee to stay at home because of concerns that the employee might expose other individuals in the workplace to the designated infectious disease.
The employee is providing care to any of the specified individuals listed above, including because of closures of schools and daycares.
The employee is directly affected by travel restrictions preventing the employee from returning to Ontario.
Any prescribed reason.

Employers continue to be able to ask for “evidence reasonable in the circumstances,” “at a time reasonable in the circumstances,” to verify the Unpaid IDEL but are prohibited from requiring employees to obtain medical certificates to justify the leave.

Takeaways

Employers should:

Carefully consider how the expiry of Deemed IDEL may impact staff currently on a Deemed IDEL.
Ensure all applications for reimbursement of Paid IDEL are made in a timely manner.
Continue to assess all requests for Unpaid IDEL on a case-by-case basis.

If you have any questions related to the extension of Paid IDEL or the expiry of Deemed IDEL and their impact on your organization, please contact your regular Hicks Morley lawy er.

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. ©

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