On June 1, 2020, the Ford government introduced amendments to the Employment Standards Act (ESA), the governing statute that forms Ontario’s employment law. Employment lawyers in Toronto were expecting some modifications to the law because, prior to these amendments, the legislation allowed employers to continue temporary layoffs for a maximum of 13 weeks. Now, over two years into the pandemic, these amendments are set to expire on July 30, 2022, and some have been considered and clarified by the court.
Amendments to Ontario’s Employment Laws
The amendments primarily accommodate employers and the financial woes they experienced due to COVID-19. Existing statutes would have put employers between a rock and a hard place at the 13-week mark. At that point, the game would have changed for employees on temporary layoffs. The ESA allowed employers to extend layoffs to 35 weeks within the next 52 weeks, but not unilaterally. They had to reach an agreement with their employees about the terms of each employee’s extended layoff. These individuals remained employees of the organization with full entitlements to their benefits and seniority. Without this agreement, employees automatically had the right to seek termination pay due to a constructive dismissal.
The new provisions eliminated much of this. Employers no longer have to recall laid-off employees to their previous position after 13 weeks. Instead, they can unilaterally transition employees from a temporary layoff to an unpaid Infectious Disease Emergency Leave (IDEL). During the COVID‑19 period (March 1, 2020, to July 30, 2022), employees are deemed to be on unpaid IDEL when they are not performing the duties of their position because their employer temporarily reduced or eliminated their hours of work or wages for reasons related, in whole or part, to COVID‑19. Furthermore, employers do not have to continue employee benefits. The amendments also removed employees’ ESA entitlements to a constructive dismissal.
Since these amendments came into effect, many employers have taken advantage of IDEL and have used it to place employees on indefinite unpaid leave for refusing to comply with employer vaccine and mask mandates. Prior to these amendments, any employee who had their work hours reduced or eliminated completely could claim constructive dismissal and sue their employer for wrongful dismissal. The IDEL amendment removed employees’ ability to claim constructive dismissal altogether. While the issue has been litigated, Ontario courts have not been able to come to a consensus, with the Superior Court coming to opposite conclusions on similar cases and the Court of Appeal declining to weigh in. However, employers are soon losing the ability to use IDEL to protect against constructive dismissal claims.
These changes apply to full-time and part-time workers retroactively from March 1, 2020, and are set to expire on July 30, 2022. Any employees who remain laid off due to COVID-19 should receive a recall letter before this date with instructions for returning to work. If a laid-off employee does not receive a recall letter by July 30, 2022, they may have a claim for constructive dismissal. Furthermore, any employees recalled from IDEL should be given credit for the amount of time spent on IDEL in terms of length of employment, length of service, and seniority.
Ontario’s Employment Laws Remain Pro-Employee
When these amendments were enacted, many saw them as a terrible blow and a step backwards for employee rights in Ontario. Two years on, employment lawyers can confidently tell employees that Ontario’s employment law still protects them and remains firmly pro-employee. Here’s what to expect on July 31, 2022, the day after the end of the COVID-19 period:
- Employees will no longer be deemed to be on unpaid IDEL.
- Regular ESA rules on constructive dismissal resume, allowing any employee who experiences a significant reduction or elimination of their hours of work or wages to claim constructive dismissal, even if the reduction or elimination relates to COVID-19.
- The ESA’s “temporary layoff clock” resets, meaning the regular rules around temporary layoffs under the ESA will apply to any employee laid off on or after July 31, 2022.
- Employees will continue to be able to take infectious disease emergency leave if needed; however, this leave will be unpaid.
To clarify, employers will no longer be able to unilaterally place employees on IDEL to get around the layoff provisions in the ESA. This means employers no longer have a legal route under the ESA to keep employees on indefinite unpaid leaves for failure to comply with their vaccine or mask mandates. Employees will still be able to take job-protected IDEL if needed.
Recall Date
We encourage laid-off employees to stay in touch with their employers about their reinstatement dates. As we approach the expiration date of these ESA amendments, employees currently laid off should get in touch with their employers to discuss their return to work.
Terminations
It is crucial to obtain clarity about your reinstatement or, in the event of job termination, an understanding of your rights regarding severance packages. If your employer neglects to recall you or terminates your employment without any severance package, we encourage you to contact us urgently. We will counsel you on strategic next steps to maneuver through these circumstances.
The law requires employers to offer termination pay commensurate with your circumstances. If you have already received termination documents, have them vetted by an employment lawyer before you sign them.
The Gray Zone: Between Layoffs and Terminations
The unpredictability of COVID-19 has strained employment relationships for over two years. This is precisely the type of environment where unscrupulous employers will try to walk in a murky gray zone between layoffs and terminations, counting on employee ignorance of the law. An economic downturn gives them the opportunity to clean up shop and issue layoff notices in bad faith to save on payroll while also avoiding the butcher’s bill of termination packages. You should contact us immediately if you believe your employer is taking advantage of the situation.
Obtaining Legal Advice
Uncertainty over one’s job and income can be a major cause of stress within households. Financial problems often result in many other issues, including mental health issues. During this period, when even the law remains subject to further adaptation, we encourage employees to stay hopeful and obtain accurate legal advice.
Ontario’s employment laws are built on a solid foundation that includes layers of precedents. Our progressive history of common laws remains strongly pro-employee. Your rights cannot be taken away by unilateral political decree so easily.
Lecker & Associates has successfully represented employees for over 35 years. If you believe your employer has breached your rights during the COVID-19 pandemic, contact our experienced employment lawyers by calling us at 866.473.1685 or filling out our online form.
