Ontario’s Employment Laws & Latest Amendments | Author: Simon Pelsmakher, employment lawyer
On June 1, 2020, the Ford government introduced amendments to the Employment Standards Act (ESA), the governing statutes that form Ontario’s employment laws. Unsurprisingly, we were expecting some modifications to the law because, as it stood, the legislation allowed employers to continue temporary layoffs for 13 weeks maximum. Although infection rates in Ontario seem to be levelling off, the province is opening up slowly and in multiple phases by region. Consequently, many employees could remain on temporary layoffs beyond 13 weeks from when the emergency measures began.
Amendments to Ontario’s Employment Laws
The amendments primarily accommodate employers and the financial woes they are experiencing due to COVID-19. Existing statutes would have put them 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 come to an agreement with you about the terms of your extended layoff. You remained an employee of the organization with full entitlements to your benefits and seniority. Without this agreement, you 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 after 13 weeks to their previous position. Instead, they can legally transition you from a temporary layoff to an unpaid Infectious Disease Emergency Leave. Furthermore, employers do not have to continue employee benefits. The amendments also removed your ESA entitlements to a constructive dismissal.
These changes apply to full-time and part-time workers and remain retroactive from March 1, 2020.
Ontario’s Employment Laws Remain Pro-Employee
At first glance, this will come as a terrible blow and a step backwards for employee rights in Ontario. However, we counsel employees not to lose hope. Ontario’s employment laws still protect you and remain firmly pro-employee. Here’s why:
- The present ESA amendments are temporary and they will expire on Jan 2, 2021. Regardless, anyone on IDEL must remain vigilant about their employment status. Your employer can only rely on these provisions for COVID-19 related circumstances. They cannot hide behind them to conduct unrelated layoffs to clean up shop.
- While on IDEL, you can still claim EI and any other government financial support.
- IDEL was enacted as a “leave”. Presently, sick and paternity leaves are considered “protected”, entitling you to reinstatement. If your job is terminated during or shortly after returning from such leaves of absence, you may have a strong case for remedial action against your employer in the courts. Even though it has not been tried in the courts, we believe parallels exist for terminations made during or immediately after a return from Infectious Disease Emergency Leave.
- Most importantly, the law continues to protect employees facing terminations. The Ford government has temporarily kneecapped employee rights under the ESA only. However, Ontario employees always received a much superior second layer of protection under our system of common laws, and they remain unchanged.
The ESA, along with a labour board ruling, only entitles you to the minimum notice and severance pay. We, therefore, consistently rely on common laws to secure the maximum entitlements for our clients. Almost always, they vastly exceed ESA provisions. This remedial avenue remains open to terminated employees, presently.
No Recall Date
We encourage laid-off employees to stay in touch with your employers about wages they owe you as well as your reinstatement date. You should also apply for federal government income replacement programs. In addition, the federal government has passed the Canada Emergency Wage Subsidy (CEWS) bill. If your employer qualifies, they will receive a subsidy to cover a portion of your wages. Accordingly, you may inquire about your entitlements under this program.
If your employer neglects to recall you, or simply terminates your employment without any severance package, then we encourage you to contact us with urgency. We will counsel you on strategic next steps to maneuver through these circumstances. It is very important that you obtain clarity about your reinstatement or, in the event of job termination, an understanding of your rights about severance packages.
The law requires employers to offer termination pay commensurate with your circumstances. If you have already received termination documents, then have them vetted by a lawyer before you sign them.
The Gray Zone: Between Layoffs and Terminations
The trajectory of the virus, or the discovery of a vaccine, will determine how quickly the government lifts emergency measures to allow commercial activities to return to normal. We believe this unpredictability will strain employment relationships for a while. Accordingly, we counsel everyone to remain patient but very vigilant about your employment status during this time.
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. And the recent temporary amendments to the ESA encourage some employers to do exactly that. An economic downturn presents them with an opportunity to clean up shop, issue layoff notices in bad faith to save on payroll, while also avoiding the butcher’s bill of termination packages. You need to contact us right away if you believe your employer is not playing fairly and taking advantage of the situation.
Obtaining Legal Advice
Uncertainty over one’s job and flow of income can become a leading cause of stress within households. Financial problems often result in a slew of other issues, including mental health illness. During this period, when even the law remains subject to adaptation for the times, we encourage employees to remain hopeful and obtain accurate legal advice.
Ontario’s employment laws are built on a strong 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.
About The Author
Simon A. Pelsmakher, B.A., (Hons), J.D., is an employment lawyer at Lecker & Associates with a practice dedicated to defending employee rights.
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