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.
Infectious Disease Emergency Leave
The Ontario government has once again extended the deemed Infectious Disease Emergency Leave (IDEL), this time until January 1, 2022. Previously, the IDEL was set to expire on September 25, 2021.
Employers will remember that as a result of the IDEL relief measure, employees whose hours of work were reduced or eliminated because of COVID-19 are on a deemed leave of absence. These employees are therefore not on layoff under the Employment Standards Act, 2000 (ESA), nor is the reduction or elimination of hours considered a constructive dismissal under the ESA.
The extension means that Ontario employers with employees still on a deemed IDEL have until January 1, 2022 before they are required to call employees back, enact a layoff, or proceed with terminations, in accordance with the ESA. This extension also applies to employees who are on the IDEL for reasons such as taking care of their children, if the children did not return to school due to the employee’s concerns of COVID-19. However, as we wrote about in our PH Report, employers should be aware that the law is still unsettled from a common law perspective.
Before recalling employees or terminating their employment, employers should consider reaching out to employees to see if they’re still available for work. Over 18 months has passed since the (backdated) introduction of the IDEL, which means that some employees may have found other work or moved on. If they’re working elsewhere or not available for recall, then they may resign or be deemed to have resigned, which means that their employers are not on the hook for termination pay or severance pay.
Paid Infectious Disease Emergency Leave
Ontario’s Paid IDEL, which was set to end on September 25, 2021, has been extended until December 31, 2021.
Ontario’s paid IDEL requires employers to provide employees with up to three days of paid COVID-19 related leave in limited circumstances. For additional information, please see our previous PH Report on this topic and the government’s updates here.
Ontario Human Rights Commission Policy Statement on COVID-19 Vaccines and Certificates
The Ontario Human Rights Commission (OHRC) has delivered some much-needed guidance about COVID-19 vaccine mandates in the workplace in the newly released policy statement (the “Policy Statement”).
In addition to providing guidance on workplace vaccine policies, the Policy Statement also addresses Ontario’s new proof-of-vaccination requirement for certain high-risk indoor settings (sometimes called a “vaccine passport”), which came into effect on September 22, 2021.
At a high level, the OHRC takes the following positions:
Mandating and requiring proof of vaccination at work is generally permissible under the Human Rights Code (the “Code”), subject to the duty to accommodate;
Exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation under the Code;
A person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code;
A personal preference or singular belief against vaccination does not amount to a “creed” for the purposes of the Code; and
Organizations can implement alternatives to mandatory vaccination, such as rapid testing, including as an accommodation (and should cover the cost as part of the duty to accommodate).
Although the Policy Statement is not binding on the Human Rights Tribunal of Ontario (HRTO) or the courts, it does provide helpful guidance for all Ontarians, and perhaps some insight into how the HRTO will approach applications dealing with COVID-19. Furthermore, the government has been reluctant to publish guidance on this topic, and perhaps the OHRC has set a trend for additional guidance to be released.