Ontario Regulation 228/20 made under the Employment Standards Act, 2000

Authors: Luisa D’Alessio & Ross Dunsmore

INFECTIOUS DISEASE EMERGENCY LEAVE

The Ontario government introduced a new Infectious Disease Emergency Leave regulation under the Employment Standards Act. Regulation 228/20 revoked the previous Infectious Disease Emergency Leave, Regulation 66/20. COVID-19 has impacted the workforce significantly and the government is responding to the changes by protecting both employers and employees from undesirable outcomes due to the unforeseen circumstances of the pandemic.

OVERVIEW OF O. REG 228/20:

Eligible employees will be able to collect the federal emergency income relief while remaining employed with legal protection.
This new regulation reduces the risk of employees claiming constructive dismissal due to a reduction in hours or wages or those placed on temporary lay-off.
This leave will protect employees and employers ensuring that businesses aren’t forced to terminate their employees after their ESA temporary layoff period has expired.

WHAT IS THE INFECTIOUS DISEASE EMERGENCY LEAVE?

Non-unionized employees who have had their wages or hours reduced or eliminated as a result of COVID-19 will be deemed to be on Infectious Disease Emergency Leave under the ESA which is an unpaid, job protected leave. This is retroactive from March 1, 2020 to the potential end of the COVID-19 period.

WHAT IS THE COVID-19 PERIOD?

The regulation applies retroactively to include the “COVID-19 period,” which began on March 1, 2020, and will expire six weeks after the declared emergency ends.

WHAT TYPES OF EMPLOYEES?

The regulation affects non-unionized employees including assignment employees and employees with necessary modifications.

WHAT CONSTITUTES INFECTIOUS DISEASE?

For the purposes of this regulation and the Infectious Disease Emergency Leave, infectious diseases are defined as diseases caused by a novel coronavirus, including SARS, MERS and COVID-19.

REDUCED WAGES OR WORK HOURS DOES NOT TRIGGER TEMPORARY LAY-OFF

This means that employees who’s hours of work and or wages have been reduced or eliminated as a result of COVID-19, will not trigger a temporary lay-off.

TEMPORARY LAY-OFFS THAT OCCURRED BEFORE MARCH 1, 2020

Any period of temporary lay-off that occurred prior to March 1, 2020, will remain and will be governed by the ESA. It will count towards future statutory temporary layoff calculations.

TEMPORARY LAY-OFFS THAT OCCURRED AFTER MARCH 1, 2020

Any layoff period that occurred after March 1, 2020 will be subject to Reg. 228/20 so long that it was connected to COVID-19. It will be disregarded and it will not count towards future temporary layoff calculations in the future.

CONSTRUCTIVE DISMISSAL

Reg. 228/20 confirms an employee cannot claim that they have been constructively dismissed if there has been a temporary reduction or elimination of work hours or wages during the COVID-19 period. This is retroactive from March 1, 2020 to the end of the COVID-19 period.

EMPLOYEES SHALL NOT BE CONSIDERED TO BE ON INFECTIOUS DISEASE EMERGENCY LEAVE IF:

Their employment is terminated or severed on or after March 1, 2020;
Their employment is severed because the employer closed their business on or after March 1, 2020;
The employee resigns following a constructive dismissal before May 29, 2020;
If their temporary layoff period ended before May 29, 2020.

RIGHTS AND BENEFITS FOR EMPLOYEES ON INFECTIOUS DISEASE LEAVE DURING COVID-19 PERIOD

The normal statutory leave rules under the ESA apply to an employee who is deemed to be on Infectious Disease Emergency Leave during the COVID-19 period. However,

Employees are now no longer required to provide notice of their intention to take the leave.
If the employee stopped participating in the benefit plans as of May 29, 2020, the employee does not have to inform their employer again about not participating during the COVID-19 period.
If the employer stopped making contributions to the benefit plan as of May 29, 2020, the employer does not have to reinstate benefits during the COVID-19 period.

COMPLAINTS FILED WITH THE MINSTRY OF LABOUR

Complaints that have been filed regarding a reduction or elimination of hours and wages will be deemed to have not been filed if the change occurred during the COVID-19 period for reasons relating to COVID-19. However, any other complaints filed with the ministry that are not related to wage and hour reductions due to COVID-19 will be filed.