Changes made earlier this summer to the Employment Standards Act, 2000 (ESA) defined a period of time where terminations of non-unionized workers would no longer be triggered. Under these new regulations, employees can essentially be laid off indefinitely, whereas in the past, a temporary layoff became a termination after 13 weeks and would be accompanied by appropriate termination and, when applicable, severance pay.
This was intended to spare employers the expense of notice payments, while allowing workers to access emergency government funding until they could return to work. The purpose of the changes to the ESA was to help businesses avoid bankruptcy, while preserving jobs.
The amendments were set to expire six weeks after the end of Ontario’s state of emergency. With the passage of Bill 195, Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020, the state of emergency in Ontario came to an end on July 24, 2020.
This meant that on September 4th 2020, the standard temporary layoff rules under the ESA will apply. If employers could not recall employees back to work or restore their wages on or before September 4th, employees would have been deemed to have been terminated and would have been entitled to termination notice.
It also meant that going forward, employers would once again only be able to temporarily lay off employees for up to thirteen weeks in a twenty-week period, which can be extended to thirty-five weeks in a twenty-week period.
COVID-19 Period Extends to January 2021
The government has now said those measures will be extended to January 2nd 2021.
Ontario also announced legislation to ban employers from requiring sick notes for those in self-isolation or quarantine. The Province will also ensure protected leave for workers who have to take unpaid leave to isolate themselves or care for others, such as children not in school.
All employees who are covered by the Employment Standards Act are entitled to take this Infectious Disease Emergency Leave (“IDEL”) leave of absence. As with other leaves of absence, an employee cannot be threatened, terminated or in any way penalized by their employer for taking or planning to take this leave of absence.
As with all leaves of absence, there are specific conditions that must be met in order for an employee to take the Infectious Disease Emergency Leave. Employees may take this leave of absence if:
- They are under investigation of or treatment for COVID-19
- They are following a COVID-19 related order under the Health Promotion and Protection Act
- They are in quarantine issued by a public health official, qualified physician or nurse, Telehealth Ontario, the Government of Ontario or Canada, a municipal council or the board of health
- They are directed by their employer to stay home in response to their employer’s concern that they might expose other workers to the disease
- They are caring for certain individuals (such as a spouse, parent or child) due to COVID-19
- They are impacted by travel restrictions due to COVID-19 and are unable to return to Ontario