On May 28, 2020, O Reg 228/20 came into force under the Employment Standards Act, 2000 (ESA), providing employers of non-unionized employees some relief during this tumultuous time. O Reg 66/20 has since been revoked.
“Infectious Disease Emergency Leave” Overview
O Reg 228/20: “Infectious Disease Emergency Leave” (IDEL) details the time period when non-unionized employees are deemed on emergency leave, and affirms that a reduction in hours and wages during the “Covid-19 period” does not trigger a temporary layoff or constructive dismissal. In fact, complaints filed during the emergency period with the Ministry regarding reduced hours and wages having constituted termination and severance are deemed not to have been filed.
Conjoined with what is prescribed and deemed IDEL, the regulation also defines when employees are deemed not on IDEL. In general, if employment is terminated or severed under any reason(s) outlined in sections 56 or 63 of the ESA, the terminations and severances still stand.
- For application and entitlement purposes, the “Covid-19 period” begins on March 1, 2020, and ends on the date that is six weeks after the government declared Covid-19 emergency terminates.
- Under the new regulation, non-unionized employees, and certain assignment employees, whose employer has temporarily reduced or eliminated their hours of work due to COVID-19 are deemed to be on an unpaid, job-protected “Infectious Disease Emergency Leave”.
- Job-protected “Infectious Disease Emergency Leave” generally means employees have a right to return to their job, or a comparable job, when the declared emergency leave is over. During the leave, employees do not otherwise need to be paid because they will be eligible for CERB.
How Might O Reg 228/20 Affect Me?
Under normal circumstances, employees are entitled to termination pay if the layoff ends up being longer than a “temporary layoff”. Under the ESA, a “temporary layoff” is defined as:
- Not more than 13 weeks of layoff in any period of 20 consecutive weeks; or
- More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks.
Further, employees may assert certain rights under the ESA, before O Reg 228/20 was filed, if the employer made significant changes to the terms and conditions of employment. For example, a substantial reduction in employees’ hours or salary may have constituted constructive dismissal. Employees may have been entitled to notice pay, or possibly severance pay, by advancing a constructive dismissal claim. However, O Reg 288/20 curtails certain rights.
To summarize, the filing of new O Reg 228/20 comes with many “what if’s”. If you have any questions regarding this blog post or need legal assistance, Mehdi Au LLP is a full-service firm that serves clients across the GTA and Ontario.
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