Deemed Infectious Diseases Emergency Leave (IDEL) is set to expire on July 30, 2022 – Here’s why employers and employees should be paying attention.
Nelligan Law is grateful for the contribution of articling student Emma Lodge in writing this blog post.
In light of the COVID-19 pandemic, the Ontario government made temporary changes to the Employment Standards Act (ESA). Non-unionized employees were considered to be (“deemed”) on unpaid infectious disease emergency leave if their employer had reduced or eliminated their work hours because of the COVID-19 pandemic. To learn more about the effects of these changes, read Nelligan Employment Lawyer Jill Lewis’ blog here.
In short, IDEL arguably allowed employers to place employees on an indefinite lay-off without triggering a termination. Prior to this, any unpaid lay-off could have been seen to be a constructive dismissal, which would have triggered the employee’s entitlements to severance and other entitlements. While there is some caselaw that has suggested that, even with IDEL, employees in some cases may still be entitled to severance (you can learn more about that here), many employers have relied on IDEL to leave some employees on a lay-off for over two years.
As of July 31, however, these changes will end and the standard rules under the ESA will once again apply – including the rules for constructive dismissal, temporary layoffs, termination, and severance.
What This Means for Employees
If you are on IDEL, you may be recalled to your job next week. If recalled, you are likely obligated to attend work.
If you are not recalled or your hours have not been returned to pre-pandemic levels, you have now arguably been terminated or constructively dismissed, and as such, may have claims to severance and other entitlements on termination.
What This Means for Employers
If you have been relying on deemed IDEL in response to the COVID-19 pandemic to reduce the hours of work or wages of your employees, you need to consider whether these changes will amount to constructive dismissal or termination.
Employers may need to either recall employees to their previous jobs or dismiss them based on the regulations in the ESA. Employers can also continue to use the temporary layoff provisions in the ESA, which allow them to place employees on temporary leave. However, they will want to follow the regulations in the ESA and the employment contract carefully and ensure that they recall their workers before the deadline or risk terminating them. Each of these steps should be taken carefully and with consideration for the effects on the employee and employment contract.
Paid and Unpaid Infectious Disease Emergency Leave
Paid IDEL, which requires employers to provide eligible employees with up to three days of paid leave for certain reasons related to COVID-19, was also set to expire on July 31, 2022. However, it has since been extended until March 31, 2023. To see how this affects employees and employers, watch Nelligan Employment lawyer Eytan Rip’s explanation in this video.
An employee can also continue to choose to take unpaid, job-protected, infectious disease emergency leave if they are unable to perform the duties of their position because of COVID-19.
Conclusion
For over two years, employers and employees have been relying on deemed IDEL. If you have questions about how these new changes might affect your rights or responsibilities, contact our employment law group today.
