On June 1, 2020, the provincial government announced the enactment of an amendment to the Infectious Disease Emergency Leave. Under this amendment, all non-union employees whose hours have been temporarily reduced or eliminated due to COVID-19 will be deemed to be on the Infectious Disease Emergency Leave, retroactive to March 1, 2020 and continuing for 6 weeks after the Ontario emergency order has been lifted.

Under the Infectious Disease Emergency Leave, employees in Ontario who are covered by the Employment Standards Act (ESA) have the right to take unpaid, job-protected leave if they are not performing their work duties because of specified reasons related to a designated infectious disease.

Many businesses have expressed concern about the impending expiration of the 13 week temporary layoff period, after which point employees are deemed to have been terminated (unless they have continued benefits, in which case the period is extended to 35 weeks). This amendment to the Leave means that these businesses will not be forced to lay off employees, and will give employers time to put in place a plan to resume operations and employment.

The amendment also protects employers who had to temporarily reduce employees’ hours from potential constructive dismissal claims under the ESA, however they may not be protected from common law claims.

Employers are required to recall employees to the job they had before the emergency order, or to a comparable job, however employers may still terminate their employees if required by such events as business closure.

For further guidance in navigating the Infectious Disease Emergency Leave amendment and the legal implications associated with returning to the workplace, please contact us at Barriston Law.

Josh Valler, Associate