The Ontario government has changed its tune on re-implementing the temporary layoff rules for deemed infectious disease emergency leaves.

Ontario’s declared emergency ended as of July 24, 2020. The previous wording of O. Reg 228/20 (a regulation under the ESA) held that employees deemed to be on infectious disease emergency leave by operation of the regulation (which includes employees who were temporarily laid off for reasons related to COVID-19) would no longer be deemed to be on leave six weeks after the declared emergency ended, being September 4, 2020. In other words, after September 4, employees whose hours of work were temporarily reduced or eliminated by their employer for reasons related to COVID-19 would no longer be on a deemed leave. They would have to be recalled or temporarily laid off in accordance with the ESA.

On September 3, 2020, the Ontario government changed the September 4, 2020 deadline to January 2, 2021. This means that employers may continue to reduce or eliminate hours if required due to COVID-19 without having to abide by the temporary layoff provisions in the ESA, at least until January 2, 2021.

This legislative change is likely in response to concerns over the continued effects of the pandemic on businesses. Many employers do not want their laid-off employees to be automatically terminated; they only want more time to adjust to the pandemic. Many employees would prefer to keep their jobs rather than have their employment end by operation of law.

Assuming there are no more unexpected extensions, employers who do not recall employees to work after January 2, 2021 will be considered to have laid-off those employees, and the old statutory rules for temporary layoffs will apply. In short, employers who provide no compensation to laid-off employees will have 13 weeks to recall the employees before the layoff becomes a deemed termination. Employers may lay off employees for up to 35 weeks if they provide certain types of compensation, such as continued benefits.

Employers now have more time to consider how to organize their workplace in response to the pandemic.

One thing employers must consider is how to deal with employees who want to remain on leave because it is their preference to not send their children back to school. This is an evolving issue. Our previous position was that such employees could only remain on leave if the child’s school could not admit the child, or if the child (or family members with whom the child resides) was immunocompromised or otherwise at an elevated health risk.

The provincial government’s September 3, 2020 announcement included the following “Quick Fact”:

Employees at businesses that have fully reopened continue to have job protection through the Infectious Disease Emergency Leave if they need to stay home to isolate or quarantine or take care of a loved one due to COVID-19. This includes parents who decide not to send their children back to school due to concerns about COVID-19.

[emphasis added]

It appears the government is taking the position that parents who choose to keep their children at home are permitted to take an Infectious Disease Emergency Leave. This is not consistent with our understanding of the law. This particular statement does not cite legislation, but it is a position the government has publicly asserted. We will continue to monitor the situation.

As the law continues to evolve, we are here to help you keep up. Call us with your questions!