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On September 3, 2020, the province unassumingly extended the IDEL, which was supposed to end on September 4, 2020.

Although the province framed the purpose of the leave as protecting employees, it has had the opposite effect.

Recap

In May 2020, the provincial government changed certain Employment Standards Act (“ESA”) rules to “protect” employees through the IDEL by allowing them to take an unpaid leave of absence from work due to COVID-19.

However, what IDEL also does is pause all employee’s rights under the ESA regarding temporary lay-off and salary reduction. Traditionally, your employer could only temporarily lay you off work for 13-35 weeks. If you were not recalled, then you were effectively terminated and entitled to statutory notice/severance and possibly a common law notice period. The IDEL pauses that 13/35-week clock during the “COVID-19 period”, which runs from March 1, 2020 to 6 weeks following the end of the Emergency Order (January 2, 2021).

How does this impact employees?

The IDEL extension is beneficial to employers who can now keep their staff out of the office for nearly one  year. Understandably, this is important for some small business owners who would otherwise have to pay out their staff’s severance amounts. However, this rule does a few things to employees:

  • Discourages employers from bringing back employees an employer has minimal incentive to bring back an employee. Instead, it makes more financial sense to bring back just a few employees to do a group’s worth of work.
  • Discourages employers to return employee’s salaries—many employees had their salaries reduced as a result of COVID-19. The IDEL states that no reduction in salary/hours/duties will result in a constructive dismissal. So again, the employer has no statutory obligation to return salaries to pre-COVID-19 amounts.
  • Targets vulnerable employees—the employer has control on who they bring back. This raises the question of whether women with young children or older staff will be more likely of remaining on IDEL.
  • Allows the employer to terminate someone’s employment without providing common law notice—Very few people can live off of $400 per week (gross). As a result, many employees will find new work to make ends meet. This is hugely beneficial to employers because although they must still pay the statutory notice/severance (1-2 weeks per year), they are likely off the hook from paying out large common law severance packages (typically 1 month per year) because the employee has found new work.
  • Other Considerations—the IDEL extension could trigger a range of other issues for employees, including employees being told that they:
    • are “temporarily laid off due to COVID-19” when, their lay off is unrelated to same;
    • are part of this IDEL if they were laid off pre-COVID-19 and therefore they have no right to their statutory notice/severance until 35 weeks post Jan 2, 2021; and,
    • can only return to work if they sign a new employment contract, which may restrict their termination entitlements.

The IDEL extension has created hurdles for employees and may put them in a vulnerable position. If you believe you are facing issues due to the new IDEL rules, speak with one of our Employment Lawyers or give our free Helpline a call.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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