July 22, 2022by Israel Foulon LLP
Infectious Disease Emergency Leave (“IDEL”), a creation of Regulation 288/20 to the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), is set to expire on July 30, 2022.
Meanwhile, paid IDEL or paid sick leave for reasons relating to COVID-19, a creation of Bill 284, the COVID-19 Putting Workers First Act, 2021, which was set to expire on July 31, 2022, has been extended to March 31, 2023 as of July 21, 2022.
We first discussed IDEL in our E-Bulletin of May 10, 2021, and we recently analyzed case law on whether IDEL precludes a claim for constructive dismissal at common law in our E-Bulletin of May 19, 2022. We first discussed paid IDEL in our E-Bulletin of May 3, 2021, and in our E-Bulletin from December 8, 2021, we confirmed the extension of both IDEL and paid IDEL to the above-noted July 2022 dates.
IDEL – A Brief Review and Next Steps
O. Reg. 288/20 defines the period commencing on March 1, 2022 and ending on July 30, 2022 as the “COVID-19 period.” Whereas in general, an employer may not unilaterally reduce an employee’s hours of work or compensation, pursuant to O. Reg. 288/20, 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 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
Deemed IDEL will expire as of the end of the day on July 30, 2022. Therefore, as of July 31, 2022, employers have the following options regarding their employees:
- An employer can re-call their employees to the same position (or a similar position if the employees’ pre-COVID position(s) truly no longer exists);
- An employer can place their employees on a temporary layoff (assuming the contract provides for same or the employee agrees in writing), keeping in mind that the decision should be solely based on business needs and compliant with the ESA (under this scenario, the ESA’s 13-week or 35-week layoff period (as applicable) will commence to run as of July 31, 2022); or
- An employer can terminate their employees and provide them with appropriate termination packages.
Paid IDEL – A Review and Next Steps
Bill 284 came into force when it received royal assent on April 29, 2021; as a result, on that day, sections 50.1 and 50.1.1 were added to the ESA. These sections require employers to provide employees with paid sick leave from April 19, 2021 until March 31, 2023 (this end date has just been extended – was previously set to end as of July 31, 2022), in the amount of up to $200 per day (less if the employee’s regular rate of pay is under $200 per day) for up to three (3) days because of certain reasons related to COVID-19, including:
- going for a COVID-19 test;
- staying home awaiting the results of a COVID-19 test;
- being sick with COVID-19;
- going to get vaccinated;
- getting individual medical treatment for mental health reasons related to COVID-19;
- experiencing a side effect from a COVID-19 vaccination;
- having been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other authority; and
- taking care of a dependent who is (a) sick with COVID-19 or has symptoms of COVID-19 or (b) is self-isolating due to COVID-19.
The three (3) days of paid sick leave are only applicable to those who qualify as “employees” under the ESA and who do not already receive contractual paid sick time. Eligible employers will be permitted to apply to the Workplace Safety and Insurance Board (WSIB) for reimbursement within 120 days of the date the employer paid the employee, or by November 28, 2022, whichever is earlier.
The WSIB cannot accept any applications for reimbursement past the 120-day deadline and it will not process any incomplete applications. Employers can make bulk applications for reimbursement requests as well. Please click HERE for a link to the application page of the COVID-19 Worker Income Protection Benefit Program.
Unpaid IDEL Remains in Effect
While deemed IDEL will no longer be in effect as of the end of July 2022, employees will still be permitted to take an unpaid, job-protected leave of absence if the reason for which they will not perform the duties of their position is because of one or more of the following reasons related to COVID-19 as follows:
- The employee is under individual medical investigation, supervision or treatment related to COVID-19.
- The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to COVID-19.
- The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to COVID-19 issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
- The employee is under a direction given by his or her employer in response to an employer concern that the employee may expose other individuals in the workplace to COVID-19.
- The employee is providing care or support to an individual referred to in subsection 50.1(8) of the ESA because of a matter related to COVID-19 that concerns that individual, including, but not limited to, school or day care closures.
- The employee is directly affected by travel restrictions related to COVID-19 and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
- The employee is subject to an order related to COVID-19 under the Reopening Ontario (A Flexible Response to COVID-19 Act), 2020.
Takeaways for Employers
The end of deemed IDEL for COVID-19-related reasons will require employers to plan for returns to work, terminations and/or other transitions. We strongly recommend that employers contact a member of our team to discuss the best way to address your business’ particular needs and to ensure that no breaches of the ESA occur while addressing unique and varied employment situations. In particular, any employer who still has employees off on Infectious Disease Emergency Leave should have a new plan in place by no later than July 30, 2022.
As well, employers are reminded that the common law is unsettled on whether employees can bring civil claims for constructive dismissals when placed on IDEL. Existing jurisprudence directs that such a legal question is highly fact-specific and employers are strongly advised to contact a member of our team prior to responding to any such claim.