COVID Layoffs & Returning to Work

COVID Layoffs & Returning to Work | Lecker and Associates

IDEL – Extended Layoffs & Wrongful Dismissal | Author: Jared Lecker, Employment Lawyer
Estimated reading time: 5 minutes

Employees looking to start the new year with recall notices to their jobs may have to wait a bit longer. Ontario’s Covid temporary layoff law, the Infectious Disease Emergency Leave (“IDEL”) provisions were set to expire but have repeatedly extended. This means that the time where employers do not have pay severance for failing to return workers to their jobs has been prolonged. The Ontario government has once again continued the temporary relief measures for employers to July 30, 2022.

This will come as a further frustrating news to those employees who have been reeling over their ambiguous employment status for more than two years! It may seem like the pandemic has eradicated all sense of fairness for your rights. As employee lawyers who represent employees in all manner of employment law disputes, we want to encourage you to not lose hope. We know that losing your job is one of the most devastating events in life, compounded by the chaos of a pandemic. Ontario’s laws are extremely pro-employee and still protect you in countless ways that we do not think about on a daily basis. This article attempts to inform you about COVID layoffs occurring under this new temporary infectious disease layoff law.

How did we get here?

The Ontario government introduced IDEL legislation on June 1, 2020. It allowed employers, who were affected by COVID-19 illness, to place employees on a protected leave of absence while the businesses were dealing with covid infections in the workplace. Employees could then tend to their health or to the health needs of a loved one while not triggering substantial severance payments that would otherwise have been payable. While it was necessary when Canadians were fighting COVID without vaccines, it’s continued application has become less relevant thanks to Canada’s diminishing COVID hospitalization rates. Also, IDEL also gave employers the right to unilaterally declare layoffs if the business required it for pandemic-related reasons (which it previously could not do).

The law governing employment in Ontario, the Employment Standards Act, 2000 (ESA), only allowed employers to conduct temporary layoffs for 13 weeks maximum. During the height of the pandemic, the province remained locked down and without a clear plan for reopening the economy. This put employers between a rock and a hard place. While the ESA permits extended layoffs of up to 35 weeks, employers first needed to meet very stringent technical requirements. We were, therefore, neither surprised with the timing of IDEL legislation nor the provisions that allow employers to unilaterally conduct extended layoffs during the pandemic. The government originally set IDEL to expire on September 4, 2020, but extended it again, and again and again. The new amendment permits these layoffs to continue for until July 30, 2022.

Employees on IDEL are not considered terminated and therefore not entitled to severance entitlements or any other forms of compensation from employers. The legislation includes hurdles for anyone who might challenge the layoff as a constructive dismissal.

Extended Layoffs Emboldening Employers

At a glance, all of this looks like a step backwards for employee rights in Ontario. Unsurprisingly, it has emboldened some employers to take the spirit of the law beyond its intentions. A few have brazenly attempted to conflate extended layoffs with terminations, counting on employees not knowing any better. Since the government introduced IDEL, we have witnessed a tidal wave rise in illegal layoffs and wrongful dismissals in Ontario.

Protections for Employees on Extended Layoff

First of all, the legislation has made IDEL a “protected leave.” Employers should not gloss over this salient point. Just like maternity and sick leave, this entitles employees to reinstatement upon return. Anyone let go during or shortly after returning from such leaves of absence have strong cases for remedial action. The Ministry of Labour has not hesitated in the past to issue orders of reinstatement along with back-pay in wages. Asking employees to forego their right to reinstatement can succumb employers into paying out expensive severance packages and legal bills.

Secondly, employers may only rely on IDEL for pandemic related reasons. You cannot place workers on extended layoffs, while the business continues to operate, and even thrive, with a new crew at the helm.

And finally, employers who find themselves in dire straits can legally terminate employees during these times. IDEL temporarily obstructs employees from seeking their ESA mandated minimum entitlements. However, Ontario employees always received a second layer of protection under our system of common law. We have consistently relied on it to secure the maximum entitlements for our clients. Almost always, it vastly exceeds ESA provisions. This remedial avenue remains open despite IDEL, and arguably remains a viable legal remedy to terminated employees during the pandemic. The courts are themselves conflicted about this, with two decisions in favor of employees and one in favor of employers. Ontario’s Court of Appeal has yet to provide definitive guidance on this pertinent issue.

What Options Do You Have During an Extended Layoffs?

Employees put on extended layoffs under IDEL should apply for federal government financial assistance programs right away. Contact us if you are facing hurdles with getting a Record of Employment from your employer. If you suspect something is not right about your layoff, then the most helpful thing you can do for yourself is to contact us for clarity. We can review your circumstances and advise you of your rights.

Do not wait until after IDEL expires on July 30, 2022 to see what happens. Employers who treat workers unfairly follow a predictable set of behaviours. If you have a case, then we can use the time to guide you so we can file an airtight case without delay when IDEL expires. For example, we will counsel you to remain in regular contact with your employer about your employment status and recall date. This due diligence will help us establish that you did not willingly accept the layoff, a fundamental requirement for determining whether yours was lawful.

These are precarious times for employees, and the latest IDEL extension will arrive as a nasty slap in the face. If you understand your rights, you can level the playing field with your employer. And we can help you in this regard.

Lecker & Associates is a Toronto employment law firm that has fought for employees for over 35 years. We specialize as Employee lawyers and act as employee-side legal counsel. We have been involved in thousands of cases involving wrongful dismissal, constructive dismissal, employment law in Ontario, employment contracts, sexual harassment in the workplace, short and long-term disability claims.