On December 7, 2021, the Ontario government announced that it was extending the Worker Income Protection Program (“Program”) until July 31, 2022. The program provides employees with up to three (3) paid days leave if they cannot work due to COVID-19 related reasons. As a refresher, Employees will qualify for paid leave if they are:

1. Unable to work because they are under investigation, supervision, or treatment for COVID-19, which includes receiving a vaccine and recovering from related side effects;
2. Exhibiting symptoms of COVID-19 and have been directed to stay home;
3. Self-isolating due to COVID-19; or
4. Caring for a COVID-19 patient.

Employers are required to pay eligible employees up to $200.00 a day for up to three (3) days. Ontario will reimburse employers through the Workplace Safety and Insurance Board.

The Ontario government also announced it would extend the temporary layoff exemption until July 30, 2022. In May 2020 Ontario introduced the Infectious Disease Emergency Leave regulation (“IDEL”) under the Employment Standards Act, 2000 (“ESA”). It protects employers who have to temporarily layoff employees due to COVID-19 by exempting those layoffs from being considered a termination of employment. In those circumstances, the employee is deemed to be on IDEL, rather than terminated, and ESA notice of termination and severance pay obligations are not triggered.

However, IDEL has created some confusion. It is possible that IDEL does not protect employers from common law constructive dismissal claims if an employee has been placed on IDEL. Several lower court cases have considered this issue and come to opposite results. One of these cases, Taylor v Hanley Hospitality Inc., 2021 ONSC 3135, was appealed and is scheduled to be heard by the Ontario Court of Appeal (“ONCA”) on April 1, 2022. Interestingly, the Ontario government initially sought to intervene in the appeal only to later withdraw that request on 2 points::

1. The IDEL provides that a temporary reduction or elimination of hours of work or temporary reduction in wages of a non-unionized employee by an employer during the COVID-19 period for reasons related to COVID-19 does not constitute a constructive dismissal under the ESA; and
2. The IDEL does not displace an employee’s right to seek a civil remedy against their employer for constructive dismissal at common law.

It appeared that the Ontario government supported the position that the IDEL does not protect employers from a common law constructive dismissal claim if they place employees on temporary layoff due to COVID-19. This suggests employers should be careful about relying on IDEL until the ONCA provides clear guidance.

The Hum Law Firm continues to monitor legal developments related to COVID-19. We encourage you to contact us immediately for legal assistance.

 

Call us at (416)214-2329 or email info@thehumlawfirm.ca.

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