THE EMPLOYERS' EDGE
COVID-19 Update: The End of Ontario’s Declared Emergency and Important Implications for Employers
On July 24, 2020, Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 came into force, and the declared emergency in Ontario came to an end. The purpose of the Act is to allow most orders made under sections 7.0.2 and 7.1 of the Emergency Management and Civil Protection Act to remain in force despite the end of the declared emergency. The orders remain in force for 30 days (until August 24, 2020), but can be extended for additional 30 day periods if necessary. Since the declared emergency in Ontario has come to an end, no new emergency orders can be issued. However, Bill 195 does provide some ability to amend existing orders under specific circumstances.
A list of the revoked and continued orders can be found here.
Emergency Leaves of Absence
While the extension of these orders has little effect on workplaces in the immediate future, the end of the declared emergency does affect several leaves of absence available under the Employment Standards Act, 2000 (ESA).
For example, the ESA already provided for a declared emergency leave of absence, which generally requires a state of emergency to be in effect. Entitlement to this leave effectively ended on July 24, 2020. However, because of the introduction of the infectious disease emergency leave (IDEL) on March 19, 2020, it is unlikely that employees have utilized the declared emergency leave under the current circumstances.
Entitlement to IDEL does not depend on the existence of a state of emergency. Rather, entitlement to the leave is premised on COVID-19 being designated as an infectious disease under the ESA. Employees who meet the other qualifying criteria (discussed in more detail here) are still entitled to the leave despite the end of the declared emergency.
Adding to the confusion is the question of employees who are deemed to be on IDEL under a regulation introduced on May 29, 2020 (discussed in more detail here) amending the layoff provisions of the ESA. This regulation deems any non-unionized employee whose hours were temporarily reduced or eliminated, or whose wages were temporarily reduced for reasons related to COVID-19 to be on IDEL. As such, any non-union employee placed on a temporary leave of absence or having their hours reduced after March 1, 2020 were deemed to be on IDEL leave. Unlike the IDEL itself, this deeming rule only applies during the “COVID-19” period, which the regulation defines as beginning on March 1, 2020, and ending six weeks after the day the declared emergency ceases (September 4, 2020).
The end of the deeming rule on September 4, 2020, means that the usual rules regarding temporary layoffs under the ESA will apply again. This means that employees who continue to experience reduced hours or wages after August 4, 2020, could attempt to claim that their employment has been terminated and assert various claims for compensation. This places employers operating at a reduced capacity due to COVID-19 at significant risk if appropriate steps have not been taken to address the temporary lay-off provisions of the ESA. Employers are urged to examine their current operational needs and, if able, take steps to recall workers back to work or adjust current salary reductions before September 4, 2020.
If you have any questions about whether these risks apply to your business, or what additional steps you can take to avoid risk, the lawyers at CCPartners are available to assist. Click HERE for a link to CCP’s COVID-19 Blog series, catch our webinars and podcasts on YouTube and SoundCloud or wherever you listen to podcasts, or contact any of our team members to answer you workplace questions.