Williams HR Law LLP

MAJOR UPDATE FOR ONTARIO EMPLOYERS: A New Ontario Regulation has Changed Layoff, Leave and Constructive Dismissal Law related to COVID-19

May 31, 2020

On May 29, 2020, the Ontario government published a new Regulation, O. Reg. 228/20: Infectious Disease Emergency Leave, under the Employment Standards Act, 2000 (the “ESA”).

The Regulation will have a dramatic impact on Ontario employers impacted by COVID-19. It is important to note, however, that the changes outlined below do not apply to unionized employees.

Among other changes, the Regulation provides that the reduction or elimination of an employee’s hours, or the reduction of an employee’s wages, by an employer for reasons related to COVID-19 in the period beginning on March 1, 2020 and ending six weeks after Ontario’s ongoing state of emergency ends does not constitute a layoff under the ESA. This is a clear change from the normal operation of the ESA, when such changes often constitute layoffs and are therefore subject to the ESA’s limits on the duration of layoffs.

The Regulation also deems that those same changes to employee hours or wages during that period do not constitute constructive dismissal.

Further, the Regulation deems that employees whose hours of work are temporarily reduced or eliminated due to COVID-19 during the period outlined above are deemed to be on the recently-enacted Infectious Disease Emergency Leave under the ESA. However, there are important exceptions to this rule, including that employees whose employment is terminated permanently are not deemed to be on that leave.

We will be more closely reviewing this important new Regulation and will publish more detailed commentary in the coming days.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.

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