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A Further Update on COVID-19 – Infectious Disease Emergency Leave Deeming Provisions Extended to January 2, 2021

September 4, 2020
by Israel Foulon Wong LLP


On September 3, 2020, the provincial government announced an extension of the COVID-19 Period to January 2, 2021. The extension offers employers additional time and flexibility as they attempt to restart their business.

COVID-19 Period Extended to January 2, 2021

On September 3, 2020, the provincial government announced that it was amending Ont. Reg. 228/20 under Employment Standards Act, 2000 (“the ESA”). The amendment extends the COVID-19 Period, previously scheduled to end on September 4, 2020 until January 2, 2021.

The regulation addresses temporary changes to the employment relationship that have occurred as a result of COVID-19 and alters the temporary layoff and constructive dismissal provisions under the ESA.  During the COVID-19 Period:

  • Where an employer is forced to temporarily reduce or eliminate an employee’s hours of work or wages, the employee is deemed to be on Infectious Disease Emergency Leave (IDEL), a job-protected leave, and is not considered to be on a temporary layoff under the ESA; and
  • Temporary reductions in wages or hours worked, for reasons related to COVID-19, are deemed not to be a constructive dismissal under the ESA.

You can access the Ontario government’s newsroom announcement regarding the extension HERE.

Takeaway for Employers

The extension of the COVID-19 Period stops the clock on the deemed termination provisions located at s. 56(2)(a) of the ESA. The ESA’s regular rules around constructive dismissal and temporary layoffs will resume on January 3, 2021.  For practical purposes, this means that an employee’s ESA temporary layoff clock will not start to run unless the employee is still not recalled to work as of January 3, 2021. This change does not necessarily prevent employees from bringing constructive dismissal claims under the common law in the meantime.

We recommend that you seek legal advice if you have concerns about how to manage your business and your workforce, before the end of the COVID-19 Period.

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.

Legal Disclaimer

This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation. Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.