Update: The deemed Infectious Disease Emergency Leave (“IDEL”) under the Employment Standards Act, 2000 (“ESA”) is set to expire on July 30, 2022. Although it's been extended in the past, we don't think it will be extended again. Additional information is available here.
Countdown to the End of the Deemed IDEL
Infectious Disease Emergency Leave is an unpaid, job-protected leave of absence. The extension of the COVID-19 Period to January 1, 2022 means that non-unionized employees whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 will continue to be deemed to be on IDEL. These employees will not be considered to be on temporary layoff or constructively dismissed under the ESA for the duration of the COVID-19 Period.
Beginning on January 2, 2022:
Employees will no longer be deemed to be on an infectious disease emergency leave;
The ESA’s regular rules around constructive dismissal resume; and
The ESA’s regular rules around temporary layoff resume, i.e. the temporary layoff timelines under the ESA will begin running again.
What Do Employers Need to Do?
To the extent that employers still have any employees on layoff or reduced hours/pay because of COVID-19, the deadline to take some action is January 1, 2022 (unless you committed to providing more advance notice to employees in the layoff/leave letter).
Depending on the circumstances, that could mean returning them to full compensation, recalling them, or again attempting to temporarily lay them off (note: there are risks with the latter option). If employers don’t take these steps, the employees could take various courses of action, including:
filing ESA claims against their employers that they are entitled to lost wages after January 1, 2022;
claiming that the failure to return them to work from the leave constitutes a wrongful dismissal;
claiming that they have been deemed to be terminated because they have not been placed on a layoff properly post-leave;
claiming they have been deemed to be terminated if the layoff periods (pre-and post-deemed leave) exceed those permitted by the ESA.
*Note: Any such claims made in relation to the COVID-19 period will be/were deemed cancelled.
“Reinstatement” Entitlements
The “deemed IDEL” is subject to the ESA’s requirements for leaves of absence, including the right to reinstatement. However, there is uncertainty about how the Ministry of Labour will apply the Regulation’s language about the loss of the right to reinstatement at the time of termination. Further, there is a risk that any termination or a further layoff could be challenged successfully by the employee. Absent a clear recall to work, any decisions must be made carefully.
Change to the Non-Deemed IDEL
The Ontario government has also confirmed that the Infectious Disease Emergency Leave continues to be available to employees of businesses that have fully re-opened where the employees cannot return to work due to the need to isolate or quarantine or to care for a loved one due to COVID-19. This is not a “deemed leave” but rather a “non-deemed leave” that employees would request.
*Note: the Ontario government has stated that this extends to parents who decide not to send their children back to school due to concerns about COVID-19.
Other Important Things to Know about the Regular IDEL
No Limit: There is no specified limit to the number of days an employee can be on the “non-deemed IDEL”. Also, employees have the right to be away from work on the “non-deemed IDEL” only for as long as the event that triggered the entitlement to the leave lasts. After the triggering event is over, the employee’s normal obligations to be at work recommence. So, for example, if a parent who previously was on a non-deemed IDEL because they decided not to send their children to school changes their mind and decides to send their child back to school, then they will no longer be entitled to be on a non-deemed IDEL for that reason.
Non-Consecutive: Non-deemed IDEL absences do not have to be taken continuously nor do the absences have to be for full days. When an employee takes a part day of non-deemed IDEL (for example, to deliver urgently needed items to a family member who is in isolation because of COVID-19), the employer must allow the employee to return to work for the remainder of the employee’s shift. The employee is entitled to be paid the earnings for the portion of the shift that the employee actually works.
Notice of Leave: An employee must advise the employer that he or she will be taking an non-deemed IDEL before starting the leave. However, if advance notice cannot be provided, the employee must inform (either verbally or in writing) the employer as soon as possible after starting the leave..