IDEL – Extended Layoffs & Wrongful Dismissal

IDEL – Extended Layoffs & Wrongful Dismissal |Author: Simon Pelsmakher, Employment Lawyer

Estimated reading time: 5 minutes

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We’ve just cheered in the new year and numerous employees were looking forward to receiving their recall notices and getting back to work. After all, Ontario’s Infectious Disease Emergency Leave (IDEL) provisions were set to expire on January 2, 2021. However, in a stunning turn of events, the Ontario government has just stretched the mandatory recall date further out to July 3, 2021. This will come as a terrible blow to those employees who have been reeling over their ambiguous employment status for months. It may seem like the pandemic has eradicated all sense of fairness for your rights. As employment lawyers who primarily represent employees, we want to offer you a modicum of hope. Ontario’s employment laws still protect you in many ways. Here is what you need to know about extended layoffs occurring under IDEL.

A Primer on IDEL Legislation

The Ontario government introduced IDEL legislation on June 1, 2020. It allowed employees, who were affected by COVID-19 illness, to pursue a protected leave of absence while tending to their health or to the health needs of a loved one. While innocuous, IDEL also gave employers the right to unilaterally declare extended layoffs if the business required it for pandemic-related reasons.

At the time, the Employment Standards Act, 2000 (ESA), only allowed employers to conduct temporary layoffs for 13 weeks maximum. 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 this to January 3, 2021. The new amendment permits these layoffs to continue for yet another six months.

Employees on IDEL are not considered terminated. You are therefore not entitled to ESA termination and severance entitlements or any other forms of compensation from employers. And the legislation includes hurdles for anyone who might challenge the layoff as 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 an infuriating rise in illegal layoffs and wrongful dismissals in Ontario.

Incredibly, even some in the legal community have jumped on this bandwagon to opine that employers could technically append 35-week ESA extended layoffs to IDEL in July, leaving employees hanging out to dry until 2022! In our opinion, this would not only be disingenuous, it would also be quite shortsighted. We caution any employer considering this strategy to think twice. IDEL may have some provisions that work in your favour, but the ESA still protects employees in powerful ways.

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 unaffected by IDEL, and available to terminated employees, presently.

Employee Due Diligence During 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 to see what happens. Unfortunately, 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.

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