Difficult Decisions May Be on the Horizon as Ontario’s Declaration of Emergency has Ended Effective July 24, 2020

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The outbreak of the COVID-19 pandemic in March placed an enormous burden on employers. The pandemic necessitated difficult decisions, such as placing employees on temporary layoff or to reducing hours of work or pay. As June approached, many employers approached the end of 13-week temporary layoffs permitted under the Employment Standards Act, 2000 (Ontario) (“ESA”), and faced the risk that their employees would be deemed terminated under the ESA – even in situations where both the employer and the employee wished to continue the employment relationship.

To address these concerns, the Government of Ontario tabled Ontario Regulation 228/20 – Infectious Disease Emergency Leave (the “Regulation”, found online here), which provides that any non-unionized employee who:

  1. had their hours of work temporarily reduced or eliminated by their employer for reasons related to COVID-19, and
  2. is not performing the duties of his or her position as a result,

is deemed to be on Infectious Disease Emergency Leave during the “COVID-19 Period”, which is retroactive to March 1, 2020, and ends six weeks following the end of Ontario’s provincial declaration of emergency.

Ontario’s provincial declaration of emergency ended on July 24, 2020. This means that the “COVID-19 Period” is set to end on September 4, 2020.

While the Regulation addressed the concerns of many employers facing the risk of deemed terminations under the ESA back in June, come September, employers may have to once again face the difficult decision to place employees on temporary layoff or to reduce hours of work or pay. This is especially so for those employers who are unable to bring back employees at the end of the COVID-19 Period. For our previous discussion on temporary layoffs generally, see our blog here.

For Assistance:

This update is part of our continuing efforts to keep our clients informed about COVID-19. Watch our COVID-19 Recovery Hub and our McCarthy Tétrault Employer Advisor Blog for further updates. If you are an employer and have questions about this blog or otherwise need assistance, please reach out to any member of our National Labour & Employment Team whenever you need to.

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