Ontario Extends Infectious Disease Emergency Leave to September 25, 2021
The Government of Ontario announced that the Infectious Disease Emergency Leave (IDEL) has been extended to September 25, 2021 (see Regulation 412/21). It was previously set to expire on July 3, 2021. As we advised you in our last update, in response to the COVID-19 pandemic, the Ontario government passed the IDEL regulation. Under the IDEL regulation, non-unionized employees whose employer temporarily reduced or eliminated their hours of work for reasons related to COVID-19 would be deemed to be on “infectious disease emergency leave”. As a
result, employers could keep their employees on temporary layoff for longer than previously permitted under the Employment Standards Act (ESA)
What this extension means is that the regular provisions in the ESA regarding temporary layoffs and deemed termination are suspended until September 25, 2021. Beginning on September 26, 2021, employees will no longer be deemed to be on IDEL and the regular ESA rules resume (i.e., not exceeding 13 weeks in any 20-week period or 35 weeks in any 52-week period, provided certain criteria set out in the ESA are met).
Conflicting Decisions in Recent Constructive Dismissal/Infectious Disease Emergency Leave Cases
We recently informed you about Coutinho v. Ocular Health Centre, 2021 ONSC 3076. In that case, Justice Broad found that the IDEL regulation only affected constructive dismissal under the ESA and not at common law. Accordingly, Justice Broad held that without an employment agreement saying otherwise, a unilateral layoff by an employer was a substantial change to the terms of employment and would constitute constructive dismissal at common law. However, in Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135, released on June 7, 2021, Justice J.E. Ferguson ruled the exact opposite.
In Taylor, the employer temporarily laid off the employee on March 27, 2020, for reasons related to COVID-19 and recalled her effective September 3, 2020. The employee claimed that her temporary layoff was constructive dismissal and therefore she had been terminated. Her argument was that, as found in Coutinho, the IDEL regulation did not displace the common law doctrine of constructive dismissal. Justice Ferguson explicitly rejected this argument and declined to follow Coutinho, viewing it as “wrongly decided”.
In dismissing the employee’s action, Justice Ferguson held that the Ontario Government “recognized the inherent unfairness in subjecting employers to wrongful dismissal claims as a result of the government imposing a state of emergency.” The bottom line for Justice Ferguson – the IDEL “Regulation can and did change the common law.” It would render the IDEL regulation meaningless if it did not displace the common law right to constructive dismissal.
Conflicting Decisions Leave the Law Uncertain for Employers and Employees
With two opposing decisions at the same level of court, the law in this area remains unsettled for the time being. It is likely this issue will eventually be clarified by the Ontario Court of Appeal. We will keep you updated as things progress.
For advice on employee rights, employer liability and other employment or labour 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.
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