On July 21, the latest bill received royal assent which made Bill 195 law as of July 24. This legislation ends the state of emergency on this date. The impact, however, of this new bill is not as dramatic as one might expect as all prior orders made under the emergency legislation will remain in effect for a further 30 days. There is a provision that these orders may be extended further as well.

Employment Standards Act

The new law does deal with the amendments created under the ESA during the emergency period. The prior protections given to workers to provide job security protection from virus-related issues will remain in place and not expire on the above date.

These protections had been provided to workers under medical investigation, supervision or treatment for a virus-related issue. This included:

• Persons unable to work due to the requirement to quarantine or directed to remain away from the workplace by a physician.
• Employees who had been directed by their company not to report to work due to likely exposure of other workers to the virus.
• Persons who were unable to work due to the need to care for family members (the description is actually broader than family members).
• Persons who required time away from work to care for a child due to a school or child care closure due to the virus.

These protections will continue for as long as COVID-19 remains defined as an infectious disease as set out in the ESA. The duration of the emergency leave will have no impact on these rights.

Temporary Lay-off Rules under ESA: Common-Law vs. Statutory Rules

During the emergency period, Ontario changed the temporary lay-off rules by deeming all employees whose wages had been reduced or eliminated due to the virus as being on Infectious Disease Emergency Leave. This law was in effect during the period of the emergency which was from March 1, 2020, until 6 weeks following the end of the state of emergency. In this time period, the statutory lay-off clock was no longer ticking to establish the time period of the lay-off.

These provisions are now set to expire on September 4, 2020.

Should the company not restore wages or employment by September 4, then the usual statutory lay-off rules will apply. The clock will then start to count the length of the lay-off for purposes of the statutory notice and severance pay. The period of “lay-off” during the COVID-19 period will not count for this purpose.

Mitigation of Damages for Common-Law Claims

These rules again apply only to the statutory entitlements. Common law claims will be treated differently. Generally speaking, an employee, presuming there is no contract or agreement to the contrary, can treat a lay-off, no matter, how long, as an act of termination under the common law.

Claimants will be advised to pay attention to the interplay between potential statutory and common law claims, the biggest one being that without the statutory remedy, the employee must show mitigation all through the common law notice period. This means that the employee has made reasonable attempts to reduce their losses throughout the period of unemployment. If you are unable to demonstrate reasonable efforts, this may affect the amount of damages you’ll be entitled to.

An offer of a return to work on the same employment terms as before the layoff will likely defeat any common law claim, but not every employer will be in the position to offer this, given the economic considerations.

Further CEWS News

The federal government has proposed new rules for the Emergency Wage Subsidy (CEWS) which provides subsidies to employers, allowing them to keep employees paid throughout the current situation. The bill provides for retroactive changes to allow for greater access to the program. The intent is to make the plan available through to November 21, with a possible extension to December 31. There is no longer a need to show a threshold decline in revenues of 30%. Any degree of loss will suffice, resulting in a proportionate sum of the wage subsidy. There is also an additional “top-up” sum where revenues have declined 50% or more.

Get Advice and Know Your Rights

The rules of engagement change day-to-day. At this moment, more than ever, it is vital to seek immediate advice with respect to legal questions, as the situation is in constant flux, whether you’re an employer or employee. Stay current and be aware of your rights and obligations.

For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.