Infectious Disease Emergency - When is it a Constructive Dismissal?

As part of its response to the ongoing coronavirus (COVID-19) pandemic, the government introduced temporary changes to the Ontario Employment Standards Act, 2000 (“ESA“).

Under O. Reg. 228/20: Infectious Disease Emergency Leave, the regulation amended the provisions of the ESA around temporary layoffs. In particular, it allows employers whose business circumstances were impacted by COVID-19 may impose temporary changes to their workforce, such as a temporary layoff of their employees (or a reduction in their work hours). In doing so, employers can avoid the usual requirement under the ESA to pay out termination pay and severance pay. This temporary change applies retroactively to all temporary layoffs since March 1, 2020 and will now continue until January 2, 2021.

Infections Disease Emergency Leave: What Is It?

For non-unionized workplaces during the “COVID-19 Period” between March 1, 2020 to January 2, 2021, this means that employees whose work hours have been temporarily reduced or eliminated as a result of the impact of COVID-19 will be considered to be on the job-‎protected Infectious Disease Emergency Leave (which means they must be able to return to their job, or a comparable one, when the leave ends. In those cases where employees have their work hours reduced or eliminated because of COVID-19, employees will not be considered to have been “temporarily laid off.”

Most importantly, in the above scenarios, the ordinary rule under the ESA that an employee would be considered to have been constructively dismissed by their employer will not apply.

Temporary Layoff: Is it Allowed Under Ontario Employment Law?

It is important for both employers and employees in non-unionized workplaces to note that the above rule allowing temporary layoffs under the Infectious Disease Emergency Leave only applies if an employer is already authorized by an employee’s employment contract to impose a temporary layoff. This is because employees enjoy far greater rights and protections under the “common law” compared to the minimums under the ESA.

Generally, under common law, an employer can only rely on the temporary layoff provisions of the ESA – including the Infectious Disease Emergency Leave – to regulate how the temporary layoff will proceed (e.g., the number of weeks) if the employment contract allows it to begin with. In other words, if an employer does not have an employee’s permission in a valid employment contract, a temporary layoff will be deemed a Constructive Dismissal, which entitles the employee to a financial severance package.

Contact Employment Lawyer

If you are an employee who has been laid off “temporarily”, or you are an employer wondering how you can apply the Infectious Disease Emergency Leave in your workplace, please contact Bune Law at 647-822-5492 or fill out the contact form on the side.

Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only to provide general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.