Paid Sick Leave

The Government of Ontario has recently announced that it will introduce new legislation which if passed, will provide employees with three government-funded paid sick days. The sick leave will be limited to 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;
  • experiencing a side effect from a COVID-19 vaccination;
  • self-isolating due to COVID-19 on instruction from an employer, medical practitioner or other authority; and
  • taking care of a dependent who is:
    • sick with COVID-19 or has symptoms of COVID-19
    • self-isolating due to COVID-19.

The three days do not need to be taken consecutively and would be available to employees who (1) are covered by the Employment Standards Act, 2000 (“ESA”) and (2) do not already receive paid sick time through their employer. Employers cannot require an employee to provide a certificate from a doctor or nurse as evidence.

If the legislation is passed, eligible employers will be able to apply for a reimbursement from the Ontario government of up to $200 per employee for each day taken. If the employee’s regular rate of pay is less than $200 per day, the employer will only be eligible for a reimbursement of the employee’s regular rate of pay. The Government has not announced the process for applying for reimbursement.

Employers are reminded to keep an eye out for further updates from Heeney Vokey LLP on this new sick leave.

Temporary layoff due to COVID-19 is a Constructive Dismissal at Common Law

As previously discussed in our June and September newsletters, the Employment Standards Act, 2000 (“ESA”) had been amended in response to COVID-19 to allow employers to lay employees off for more than 13 weeks without triggering the termination and severance provisions of the ESA. A recent decision has held that Infectious Disease Emergency Leave (“IDEL”) imposed by the employer constitutes constructive dismissal at common law.

Normally, the ESA permitted employers to place employees on temporary layoff without it being considered a termination if the layoff was for a maximum of (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 continue benefits throughout the layoff period). If the employee was on temporary layoff for anytime passed the maximum, the ESA automatically deemed them to be terminated which triggered the termination and severance provisions of the ESA. Ontario Regulation 228/20 (“O.Reg 228/20”) introduced IDEL and set out that an employee who would normally be considered on layoff due to a reduction in hours of work/wages for reasons related to COVID-19 will be deemed not to be on the layoff for the purposes of the ESA’s termination and severance provisions.

In Coutinho v Ocular Health Centre, 2021 ONSC 3076, Justice Broad held that O.Reg 228/20 does not affect the employee’s right to pursue a civil claim for constructive dismissal against the employer at common law. Justice Broad cited section 8(1) of the ESA which states that “no civil remedy of an employee against his or her employer is affected by this Act.” It was noted that the Ministry of Labour’s guide to the temporary changes to the ESA stated that the rules under O.Reg 228/20 only affected what constitutes a constructive dismissal under the ESA and do not address what constitutes a constructive dismissal at common law.

Justice Broad cited the “well-established” principle that absent an agreement to the contrary, a unliteral layoff by an employer is a substantial change in the employee’s employment and would constitute a constructive dismissal. As there was no agreement between the parties in this case, the employee’s layoff constituted constructive dismissal at common law.

Take-Away

While it is likely that this case will be appealed, it highlights the importance of drafting employment agreements which clearly provide the employer with the right to temporarily layoff employees. Had there been such a contract in this case, the employee would not have been able to claim constructive dismissal. This case is likely to prompt more employees who have been laid off due to reasons related to COVID-19 to commence claims for constructive dismissal. The lawyers at Heeney Vokey LLP would be happy to discuss how this development specifically impacts your organization.