To recap: In March 2020, the Ontario government created the “deemed” Infectious Disease Emergency Leave (“IDEL”) under the Employment Standards Act, 2000 (“ESA”). Because of the deemed IDEL, non-unionized employees were deemed to be on a job-protected leave of absence if their hours were reduced or eliminated by the employer for COVID-related reasons. This was a workaround to avoid the time limits applicable to temporary layoffs under the ESA and certain constructive dismissal claims to the Ministry of Labour (“MOL”).
The “deemed” IDEL is now set to expire on July 30, 2022. There is no indication it will be extended again, and we think any further extension is very unlikely.
This means that beginning on July 31, 2022:
Employees on an employer-directed, COVID-related leave of absence will no longer be deemed to be on unpaid IDEL;
The ESA’s regular rules around temporary layoffs and constructive dismissal resume; and
Employees may once again have recourse to the MOL for complaints that the reduction/elimination of their hours constituted a termination of employment.
Employers that still have employees on the “deemed” IDEL need to assess their options and take action before July 30, 2022. We recommend that employers with employees on IDEL consider their options:
reaching out to employees on IDEL and check whether they’re prepared to return, or whether they’ve moved on (which can be deemed as a “quit”)
reinstatement
termination
further temporary layoff
Each of these potential approaches has its own risks and benefits, and will need to be assessed based on employer and each individual’s circumstances.
Two final notes:
the requirement to provide paid IDEL (3 paid infectious disease emergency leave days, subject to certain conditions and eligibility requirements) has just been extended to March 31, 2023; and
notwithstanding the expiry of the deemed IDEL, the regular non-deemed/employee-directed unpaid IDEL remains available to employees who need a leave of absence for COVID-related reasons.
If you need help managing the end of the deemed IDEL, please reach out to us in advance of the July 30 expiry date.