On September 3, 2020, the Ontario government announced further modifications to the Employment Standards Act, 2000 (“ESA”), to allow temporary layoffs for employees to continue until January 2, 2021, without counting towards the maximum time allowed spent on temporary layoff pursuant to the ESA. The modifications are being made pursuant to an amendment to Regulation 228/20: Infectious Disease Emergency Leave.
As noted in our newsletter of June 2, 2020, Regulation 228/20 (1) provisionally froze temporary layoff timelines and (2) stated that temporary reduction or elimination of an employee’s work hours or wages for reasons related to COVID-19 are not considered constructive dismissals under the ESA. These changes are in effect during “the COVID-19” period. The COVID-19 period was originally defined as March 1, 2020, until six (6) weeks after the state of emergency in Ontario ended, which would have ended the COVID-19 period on September 4, 2020. With the new amendments to Regulation 228/20, the COVID-19 period has now been extended and is defined as March 1, 2020, to January 2, 2021.
Prior to the changes brought on by COVID-19, the ESA allowed employers to place employees on temporary layoff without being considered a termination for (1) up to 13 weeks in a 20 consecutive week period or (2) more than 13 weeks in a 20-week period but less than 35 weeks of layoff in a 52 week period if the employer fulfilled one of a list of options (such as continuing benefits throughout the layoff period). If an employee was on a temporary layoff for anytime longer, he/she would be deemed terminated, triggering the termination and severance provisions of the ESA; however, now employees can remain on temporary layoff until January 2, 2021, without it counting towards the 13 or 35 week maximum.
Job protection for employees falling under the infectious disease emergency leave (i.e. employees who must stay home for medical reasons related to COVID-19, because they must isolate or quarantine, or must take care of a loved one due to COVID-19) has also been extended.
Please see our newsletter of June 2, 2020, for further details of the changes to the ESA brought in by Regulation 228/20.