June 9, 2021
by Israel Foulon Wong LLP

Summary

On June 7, 2021, the government of Ontario announced, that in response to positive public health trends and increasing vaccination rates, the province would be moving to Step One of the Roadmap for Reopening as of 12:01 a.m. on Friday, June 11, 2021.

This news comes on the heels of the provincial legislature’s decision to extend the COVID-19 period under the Infectious Disease Emergency Leave (IDEL) regulations to September 25, 2021.

Step One – Roadmap to Reopening – What Can Open?

Step One permits businesses to begin gradually reopening with an initial focus on resuming outdoor activities, including permitting outdoor social gatherings of up to ten (10) people.

As of June 11, 2021 at 12:01 a.m., eligible businesses will be permitted to open subject to the following restrictions:

• Outdoor dining for up to four people per table;
• Essential retail may open at 25% capacity;
• Non-essential retail may open at 15% capacity;
• Religious rights and ceremonies may provide services at 15% capacity indoors and outdoors with capacity subject to social distancing of 2 meters;
• Outdoor sport training (no games or practices), fitness classes and personal training in groups of up to ten people;
• Day camps;
• Overnight camping at campgrounds and campsites;
• Outdoor horse racing and motor speedways without spectators; and
• Outdoor pools and wading pools

The province will remain at Step One for a period of at least twenty-one (21) days, subject to continued monitoring of public health trends. The Roadmap to Reopening provides added guidance and gradual easing of restrictions based on current vaccination rates and positive public health indicators. We recommend that you seek legal advice if you have questions about how to safely reopen your business.

You can review the province’s Roadmap for Reopening HERE.

You can review the full Ontario Newsroom press release HERE.

COVID-19 Period Extended to September 25, 2021

The provincial government recently amended Ont. Reg. 228/20 under the Employment Standards Act, 2000 (“ESA”). The amendment extends the COVID-19 Period, previously scheduled to end on July 3, 2021, until September 25, 2021 (coinciding with the scheduled end of the federal government’s Canada Recovery Sickness Benefit).

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.

The impact of the ESA Regulation in terms of constructive dismissal claims under common law continues to be litigated, and will be the subject to a future E-Bulletin.

Take away for Employers

The extension of the COVID-19 Period continues to stop the clock from running 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 September 26, 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 September 26, 2021. At that point, employees not recalled to work would be transferred from IDEL to temporary layoff. Such employee would then be deemed to be terminated under the ESA if they are not recalled to work within 13 weeks from September 26, 2021 (if no benefit continuation is in place) or 35 weeks from September 26, 2021 (if benefit continuation is in place).

Additionally, it also means that temporary changes to an employee’s compensation or hours of work made between now and September 25, 2021, will not result in a constructive dismissal under the ESA. However, changes to the employment relationship cannot be made on a frivolous basis and must arise due to circumstances related to the COVID-19 pandemic. Moreover,  it is presently unclear whether the temporary amendments to the ESA prevent employees from raising a constructive dismissal claim at common law.

We recommend that you seek legal advice if you have concerns about how to navigate these issues.

Israel Foulon Wong’s Response to COVID-19

Israel Foulon Wong 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.