After several extensions, Ontario’s Deemed Infectious Disease Emergency Leave (“Deemed IDEL”) has expired on July 30, 2022, in accordance with O. Reg. 228/20 (the “Regulation”) under the Employment Standards Act, 2000 (“ESA”). Employees whose hours of work or wages have been temporarily reduced or eliminated for reasons related to COVID-19 will no longer be deemed to be on a statutory leave, and may now be considered to have been laid off or constructively dismissed under the ESA.
In contrast, the Ontario government extended the availability of paid IDEL (“Paid IDEL”) until March 31, 2023. Eligible employees will continue to be entitled to up to three (3) days of paid leave where they cannot work for reasons related to COVID-19.
These changes do not impact an employee’s right to take an unpaid IDEL (“Unpaid IDEL”).
Deemed Infectious Disease Emergency Leave Expired
Deemed IDEL expired on July 30, 2022.
The Ontario government implemented Deemed IDEL as a temporary relief measure for employers during the pandemic. Deemed IDEL benefited employers by allowing them to change their compensation and scheduling practices for COVID-19 related reasons, during the defined “COVID-19 period” (between March 1, 2020 and July 30, 2022), while shielding them from ESA claims by affected employees.
During the COVID-19 period, there was legal uncertainty as to whether the Regulation removed an employee’s common law right to advance a civil claim for constructive dismissal, or if it only precluded constructive dismissal claims under the ESA. As Deemed IDEL has now expired, it is unlikely that we will get clarity on this issue. For more information on this topic, please read our blog on the Taylor v Hanley Hospitality Inc. appeal.
Paid Infectious Disease Emergency Leave Extended
Paid IDEL has been extended until March 31, 2023. As such, employers must ensure that they continue to provide eligible employees with up to three (3) days of paid leave where they are entitled to it.
In particular, eligible employees are entitled to be paid up to $200 per day for up to three (3) days where they cannot attend work because they:
- are sick with COVID-19;
- are going for a COVID-19 test or staying home awaiting the results of a COVID-19 test;
- are going to receive a COVID-19 vaccination or are experiencing a side effect from a COVID-19 vaccination;
- have been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other authority; or
- are taking care of a dependent who is sick with COVID-19, has symptoms of COVID-19, and/or is self-isolating due to COVID-19.
Employers can be reimbursed for Paid IDEL for up to $200 per day if they submit a claim to the Workplace Safety and Insurance Board (“WSIB”) before the earlier of 120 days from the date they paid their employee, or July 29, 2023.
Unpaid IDEL Remains Available
The changes made to Deemed and Paid IDEL do not impact an employee’s right to access Unpaid IDEL. Unpaid IDEL will remain in place as an ESA leave until COVID-19 is no longer designated as an “infectious disease” by the Regulation. Employees can take Unpaid IDEL if they are not performing the duties of their position for reasons related to COVID-19, including that they are under medical investigation, supervision or treatment, or have been directed by their employer to stay at home because of concerns that they might expose other workers to COVID-19. Currently, there is no specified time limit on the designation of COVID-19 as an infectious disease under the Regulation.
Takeaways for Employers
Employers who have temporarily reduced or eliminated their employees’ hours of work or wages for reasons related to COVID-19 can no longer utilize Deemed IDEL. Therefore, if employers do not restore their employees’ regular wages and work hours, they will run the risk of triggering a layoff or constructive dismissal under the ESA. To minimize the risk of a costly ESA claim, employers should proactively identify which of their employees are affected by the expiration of Deemed IDEL. Once identified, those employees should be provided with the same work hours and wages that they received before being placed on Deemed IDEL. If necessary, and if expressly permitted by the employment agreement, employers may also consider temporarily laying off employees, bearing in mind that the ESA imposes certain requirements for doing so.
Notwithstanding the expiration of Deemed IDEL, employers should remain prepared for employees taking Paid or Unpaid IDEL. Employers should continue to accept and evaluate all requests for Unpaid IDEL in good faith, on a case-by-case basis. Furthermore, employers should ensure all applications to the WSIB for reimbursement of Paid IDEL are made within the relevant timeframe.