On May 29, 2020, the Ontario government introduced Ontario Regulation 228/20 for non-unionized employees deemed to be on the Infectious Disease Emergency Leave rather than being constructively dismissed during the COVID-19 period, when most of the employees are negatively impacted by a temporary reduction or elimination of hours of work or wages from mandated business shutdowns enacted by the government in order to stop the spread of COVID-19.
This regulatory amendment applies retroactively to March 1, 2020, and will expire six weeks after when the emergency order is lifted, which is defined as the "COVID-19 period" in this regulation.
As a result, it can help clarifying some of our concerns during this unprecedented situation, particularly in this new regulatory change which specifies a proper procedure of handling employment-related matters during the COVID-19 period. I am going to discuss the job-protection for employees and relief made available to employers according to this regulatory change in the following:
Job-protection for employees
- The time limit of a temporary layoff during the COVID-19 period can be extended beyond the time that the Ontario Employment Standard Act (ESA) allows, except for the employees who have already been dismissed, permanently laid off or given a notice of termination (this notice can be otherwise cancelled upon consent) prior to May 29, 2020 during the COVID-19 period. Under ESA, a standard temporary layoff is usually no more than 13 weeks in a period of 20 consecutive weeks, or less than 35 weeks in a period of 52 consecutive weeks for an extended temporary layoff. This regulatory change can help reducing permanent lay-offs, when businesses are usually forced to trigger terminations after the ESA temporary layoff periods have expired, but rather employees are now deemed to be on the Infectious Disease Emergency Leave.
- Employee remains employed during the Infectious Disease Emergency Leave with his or her eligibility for federal income support programs, and will be able to return to work when the leave ends. Whether an employee can be entitled to the continuation of company benefits during the Infectious Disease Emergency Leave really depends on the employer’s continued contributions to the company benefits plan during the leave until May 29, 2020.
Relief for employers
- A temporary reduction or elimination of an employee’s hours of work OR employee’s wages in relation to the designated infectious disease cannot be considered as constructive dismissal during the COVID-19 period. However, it is not applicable to employees who have already been terminated prior to May 29, 2020 during the COVID-19 period.
That being said, the above-mentioned amendments are only limited and applicable to employer-and-employee relationship under ESA with the minimum standards. Nevertheless, it is not restrictive to employees who refer to seek for compensation(s) or/and enforce their rights, where the common law governs in that particular employer-and-employee relationship.
This regulatory change can indeed clarify some of our employment-related concerns during the COVID-19 period, and facilitates a proper approach of managing human resources towards the gradual reopening of businesses in our community. Hopefully, more businesses can minimize further reduction or closure in their operations, while most workers can remain employed awaiting to go back to their jobs soon due to all these changes.
Note: Further details in the Ontario Regulation 228/20 can be referred to the link below:
Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for your independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.
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