July 28, 2020 by Israel Foulon Wong LLP
Summary
Since our July 22, 2020 E-Bulletin, Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“the Act”) received royal assent on July 21, 2020. The Act brings an end to the declared state of emergency in the Province of Ontario as of July 24, 2020, and will impact businesses and individuals moving forward.
Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020
The Act brings an end to the declared state of emergency in the Province of Ontario while empowering the provincial government to extend and maintain existing public health orders passed under the Emergency Management and Civil Protection Act, in relation to COVID-19.
Under the Act, all existing public health orders, that have not previously been revoked, continue to be in effect. The Act empowers the provincial government to amend and extend public health orders in thirty (30) day intervals – for a period of up to one year. Under the Act, the provincial government may make orders related to:
- Closing or regulating any place, whether public or private, including any business, office, school, hospital or other establishment or institution.
- Providing for rules or practices that relate to workplaces or the management of workplaces, or authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify and implement redeployment plans or rules or practices that relate to the workplace or the management of the workplace, including credentialing processes in a health care facility.
- Prohibiting or regulating gatherings or organized public events.
To access the full legislation for Bill-195, Click Here.
Infectious Disease Emergency Leave (IDEL)
On May 29, 2020, the provincial government published a series of time-limited amendments to the Employment Standards Act, 2000 (“the ESA”)through Ont. Reg. 228/20. The regulation addressed temporary changes to the employment relationship as a result of COVID-19 and introduced IDEL, a statutory job-protected leave. Pursuant to the regulation, where an employer reduced or eliminated an employee’s hours of work or wages as a result of COVID-19, the employee was retroactively placed on a deemed IDEL, and not considered to be on a temporary layoff under the ESA. The regulation is scheduled to remain in effect until six-weeks after the declared state of emergency has ended.
Accordingly, unless extended, the deemed IDEL provisions will end on September 4, 2020. As a result, employers who placed employees on temporary layoff which then became a deemed IDEL and who intend to place employees back on temporary layoff as of September 4, will need to be cautious of the deemed termination provisions located at s. 56(2)(a) of the ESA. Where an employee is placed on layoff for more than thirteen (13) weeks within a twenty (20) week period, it will trigger the employee’s termination entitlements, under the ESA, to notice and severance, if applicable (and assuming the employer has not continued an employee’s benefits or provided another of the benefits prescribed by the ESA). If an employer has continued an employee’s benefits (or provided another of the prescribed benefits under the ESA), the layoff may last for up to 35 weeks in a 52-week period.
Moreover, employers will need to consider how to transition employees back to the workplace carefully. Continued reductions in wages or hours worked may further expose employers to claims for constructive dismissal.
Additionally, it is worth noting that the end of the declared state of emergency only affects the deeming provisions. Employees will still be able to access IDEL for reasons related to COVID-19, as required by public health, or on a voluntary basis.
To review Israel Foulon’s full breakdown of Ontario Regulation 228/20, Click HERE.
We recommend that you seek legal advice if you have questions about how this will affect your business moving forward.
Israel Foulon’s Response to COVID-19 Israel Foulon is assessing the situation as it evolves, and is taking all necessary precautions within its workplace. To slow the spread of COVID-19 and for the health of our team and clients, absent extraordinary circumstances we are working remotely until further notice whenever possible. However, please be aware that our offices remain open and are fully functioning. In the circumstances, we encourage our clients to contact us by phone and email to the extent possible. Voicemail messages left at our office phone numbers are immediately forwarded via email. All messages will be promptly responded to. We remain steadfast in our commitment to our clients and would be more than happy to assist you with concerns regarding COVID-19 or any other employment or labour matters.