With the welcome easing of COVID-19 restrictions in Ontario – from masking requirements to vaccine mandates – it’s been a while since many employers have had to turn their minds to the Infectious Disease Emergency Leave (IDEL). When the IDEL was first introduced, we were faced with an array of questions from employers. Since then, the IDEL has been through several updates and expansions. This blog discusses the most recent update to the IDEL.
Paid IDEL
What’s Changed?
Paid IDEL has now been extended to July 31, 2022. The Ontario COVID‑19 Worker Income Benefit (“Benefit”), which came into effect April 29, 2021, amended the Employment Standards Act, 2000 (“ESA”) and required employers to provide paid IDEL to eligible employees. It was previously set to end on December 31, 2021.
What Does an Employer Need to Do?
Employers must provide employees with paid IDEL – more specifically, up to $200 a day for up to three days – for reasons related to COVID-19. Eligible employers can be reimbursed up to $200 per employee for each day taken so long as their applications are made to the Workplace Safety and Insurance Board within the earlier of (1) 120 days of the date they pay the employee; or (2) November 28, 2022.
Deemed IDEL
What’s Changed?
The COVID-19 period for deemed IDEL will end on July 30, 2022. This leave, which employers can unilaterally place non-unionized employees on, was created by a provincial regulation (“Regulation”) made under the ESA and was last set to expire on January 1, 2022.
What Does an Employer Need to Do?
Under the ESA, non-unionized employees are deemed to be on this leave if they were laid off or had their hours temporarily reduced for reasons related to COVID‑19 from March 1, 2020 to July 30, 2022 (the COVID-19 period). These employees are exempted from being found, under the Regulation, to have been constructively dismissed.
Beginning July 31, 2022, regular layoff rules will begin again. Under these regular rules, an employer can lay off employees for 13 weeks or, if benefits are continued, up to 35 weeks.
However, employers should keep in mind that due to conflicting judicial decisions, the law remains murky regarding whether employees who have had their hours reduced or eliminated for COVID-19 reasons may successfully make a common law claim for constructive dismissal.
Voluntary IDEL
The rights of unionized and non-unionized employees who wish to voluntarily take an IDEL for reasons related to COVID-19 have not changed. These rights will continue to be available to employees so long as the circumstances leading to their leave continue and COVID-19 is designated as an infectious disease.
Have an employee off on an IDEL or questions about COVID-19-related workplace requirements? Please get in touch for a one-on-one consultation with one of our lawyers.
