Ontario Reg. 228/20 Infectious Disease Emergency Leave – Employer Takeaways

Here's some good news for employers. 

On May 29, 2020, the Ontario government introduced Regulation 228/20
(“the regulation”), which broadens the scope of the Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (ESA).

The overall goal of this temporary amendment to labour laws: Help businesses avoid permanently laying off employees and paying out severance, which during the pandemic, could send many businesses into bankruptcy.

Details and key elements of the regulation are as follows:

Changes to Infectious Disease Emergency Leave

The regulation makes the following key changes to the application of the Infectious Disease Emergency Leave provisions of the ESA:

Application

The regulation applies to all non-unionized employees, with the exception of the following circumstances:

• The employer dismisses the employee;
• A layoff is necessitated by a permanent discontinuance of all the employer’s business at an establishment;
• The resignation of an employee after receiving notice of termination on or after March 1, 2020;
• The employee resigns following a constructive dismissal before May 29, 2020; and,
• A deemed termination as a result of the expiry of an applicable temporary layoff period occurs before May 29, 2020.

Duration

The regulation will be in place during the “COVID-19 period”, which is defined as the period beginning March 1, 2020 and ending on the date that’s six weeks after the declared emergency is terminated.

Deemed Leave of Absence

Non-unionized employees who have had their hours temporarily reduced or eliminated as a result of the COVID-19 pandemic will be automatically deemed for ESA purposes to be on Infectious Disease Emergency Leave.

This is an unpaid, job-protected leave, which means employers cannot terminate the employment of any employee on such leave unless the dismissal is unrelated to the leave.

Employee Rights & Benefits

All of the normal rules associated with statutory leaves under the ESA will apply to an employee who is deemed to be on Infectious Disease Emergency Leave during the COVID-19 period, except for the following:

• The normal requirement for the employee to provide notice of their intention to take the leave does not apply.
• If an employee had stopped participating in a benefit plan as of May 29, 2020, the employee does not have a right to continue participating in the benefit plan during the COVID-19 Period.
• If an employer had stopped its contributions to a benefit plan as of May 29, 2020, the employer is not required to make contributions to that benefit plan during the COVID-19 Period.

No Layoff or Constructive Dismissal

The regulation states that a temporary reduction or elimination of work hours and/or a temporary reduction of wages during the COVID-19 period for reasons relating to COVID-19 does not constitute a layoff or a constructive dismissal under the ESA.

Complaints to the Ministry of Labour

The regulation states that any employee complaints alleging termination due to a reduction or elimination of hours or a reduction of wages, will be deemed to not have been filed with the Ministry of Labour if the change(s) occurred during the COVID-19 period for reasons related to COVID-19. 

Keep in mind that this does not apply if the complaint falls under the exceptions for the regulation.

Key Takeaways for Employers

• This expansion of job protection widens an employer’s options and helps them avoid permanently laying off employees and paying out severance that would have occurred when temporary layoffs exceeded thirteen weeks.
• The new regulation simplifies the legal risk associated with the necessary job changes many employers have had to make. Where there is limited work available, most employees who were not already terminated or who did not assert a constructive dismissal within a reasonable period are now deemed to be on Infectious Disease Emergency Leave. 
• Employers are not required to notify employees of their transfer from temporary layoff to job-protected leave, as the change happens automatically and retroactively to March 1, 2020. However, it's best practice to do so as employees may otherwise be waiting for a recall date that no longer applies. 
• Employers must comply with the leave requirements under the ESA, including with respect to benefits continuation—subject to the exceptions discussed above—and job protection.
• Employers should review their pension and benefits plans to determine whether the deemed leave provisions of the regulation could result in any contractual requirement to reinstate pension or benefit contributions during the leave period.

Sarah Visca is the Operations Manager at ConnectsUs HR, a company that provides tools & resources to quickly set up a Human Resources department.  
You can contact her here. 

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