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Employer Advice on ESA Changes After End of Regulation 228/20


*Please note that the changes discussed in this blog have been superseded by Regulation 492/20, which extended the COVID-19 period and the Infectious Disease Emergency Leave till January 2, 2021. You can read our blog on Regulation 492/20 here.

On July 24, 2020, the Ontario government ended the state of emergency declared in March due to COVID-19. The Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, came into effect the same day.

The lifting of emergency affects an important temporary amendment made to the Employment Standards Act: Regulation 228/20: Infectious Disease Emergency Leave.

Regulation 228/20 was to stay in force during the COVID-19 period. The COVID-19 period started from March 1, 2020, and ends six weeks after Ontario’s state of emergency is lifted. This means the changes brought about by the Regulation will end on September 4, 2020.

This is how ending of Regulation 228/20 will affect employers:

Temporary layoffs will be back

The Regulation got rid of temporary layoffs during the COVID-19 period. All non-unionized employees who were laid off or had their work hours or wages reduced due to the pandemic were considered to be on an Infectious Disease Emergency Leave. This leave was unpaid and job-protected.

Once the COVID-19 period ends, all such employees will no longer be on an Infectious Disease Emergency Leave. They will be regarded as temporarily laid off under the ESA.

In Ontario, the maximum duration allowed for a temporary layoff is 13 weeks in a 20 consecutive week period.

The duration can also be more than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks in any period of 52 consecutive weeks, if the employer provides some form of compensation, such as pay or benefits, to the employees.

A temporary layoff that exceeds the allowed length under ESA is considered to be a termination of employment. Typically, the worker will then be entitled to termination pay.

Reducing or eliminating hours/wages can invite constructive dismissal claims

When an employer changes major terms of employment without any contractual rights or the worker’s consent, it is a constructive dismissal. Major changes include changing the worker’s position, salary, working hours or location. Doing so is regarded as a termination of the employment. The employee is then entitled to severance pay.

Under the Regulation, a temporary reduction or elimination of an employee’s work hours or wages due to the pandemic during the COVID-19 period was not considered a constructive dismissal. This measure was retroactive to March 1, 2020, and in force till the end of the COVID-19 period.

Once the COVID-19 period ends, workers whose work hours or wages are temporarily reduced or eliminated due to the pandemic can file a constructive dismissal claim.

Employees will be able to take hours/wages reduction/elimination grievances to MOL

Under the Regulation, complaints of termination due to temporary reduction in work hours or wages were not filed if the changes took place during the COVID-19 period due to pandemic-related reasons.

This will change after the COVID-19 period ends on September 4, 2020Workers in such cases would be able to file a termination/employment severance complaint with the Ministry of Labour.

Want to know your employer obligations surrounding COVID-19?

For advice on staff management during the pandemic, call an expert today: 1 (833) 247-3652.