Deemed IDEL Set to Expire on July 30, 2022
Infectious Disease Emergency Leave (“IDEL”) is among the most controversial employment law changes made by the Ontario government in response to the COVID-19 pandemic. By placing employees on a “deemed” IDEL, employers could essentially skirt the ordinary time limits for temporary layoffs in Ontario (which are typically capped at 13 weeks, subject to certain exceptions). In extreme cases, deemed IDEL has resulted in employees being left without work, and regular pay, for a staggering period of two and a half years.
The permissible length of deemed IDEL was extended multiple times since it was first made law in May 2020. Following the withdrawal of most pandemic public health measures, however, it seems unlikely that deemed IDEL will be extended yet again. As such, employers and employees should start planning now for the end of deemed IDEL on July 30, 2022.
Employers: Recall, Layoff or Dismiss?
Employers will need to decide how to treat all staff remaining on deemed IDEL. There are essentially three options:
Recall - instruct workers to return on a fixed date and allow them to resume their previous jobs (or equivalent positions where applicable);
Layoff - if there remains a lack of work but this situation could improve in future, employers may place employees coming off IDEL on a temporary layoff[1], pursuant to the strict requirements of the Employment Standards Act, 2000; or
Dismiss – should workers no longer be needed, they may be dismissed on a without cause basis by providing sufficient compensation-in-lieu of notice to satisfy any statutory and contractual entitlements.
Employers should be mindful to communicate their decisions to impacted workers in advance of the July 30th expiry of deemed IDEL.
Recalled workers must be advised of their return date and new schedule. Employees placed on temporary layoff should be notified of this fact in writing, with the layoff period specified, and any applicable support arrangements detailed (such as benefits continuation, supplemental EI benefits, etc.). Finally, dismissed workers should receive formal notice of their job termination, along with the particulars of their severance entitlements.
Employees: Assess Your Options
For workers who remain on deemed IDEL, if you do not yet know what will happen on July 30, 2022, consider asking for clarification from your employer in writing at this time. Once you know how your employer will treat you following the expiry of deemed IDEL, you can plan accordingly.
Recalled workers will need to assess any potential changes made to their employment. Query whether your proposed pay, job duties, or other key terms of employment are still in line with your pre-IDEL entitlements. Second, if you have found temporary work while on IDEL, reflect upon whether you wish to return to your old job, and if so, what arrangements you may need to make in advance of your recall date.
If you are informed that you will be placed on a temporary layoff, consider whether your employer has a right to implement such a change to your employment. Check your employment agreement for a temporary layoff clause and ask yourself whether you have ever agreed to, or been placed on, a temporary layoff previously. If you do not have a history of temporary layoffs, and your employment agreement is silent on the employer’s ability to institute such a layoff, speak with an employment lawyer immediately. You may have a claim for constructive dismissal.
Finally, dismissed employees should assess the reasonableness of their proposed severance arrangements prior to signing anything. This can be a complex process, requiring consideration of your employment agreement, work history, and statutory entitlements. To learn more about severance packages, click here to read our overview.
The Outstanding Question: Does IDEL oust the Common Law?
As long-time blog readers may know, there has been an ongoing dispute as to whether employees could reject employer attempts to place them on deemed IDEL. Trial-level courts in Ontario had returned differing decisions, so when the issue recently came to the Ontario Court of Appeal in the case of Taylor v. Hanley Hospitality Inc., 2022 ONCA 376, employment lawyers were paying close attention.
Unfortunately, the Court of Appeal in Taylor declined to answer the question of whether deemed IDEL protects employers from claims of constructive dismissal. The Court instead allowed the appeal and sent the case back down to be decided by a different trial judge based upon procedural errors made in the original decision.
As the tally currently stands, two decisions[2] of the Superior Court of Justice have held that deemed IDEL does not oust the common law. The only conflicting decision, Taylor[3], has now been overturned and returned for further adjudication.
Need Advice?
Deemed IDEL is a new and complicated area of the law. If you are unsure how to proceed in advance of the July 30th expiry of deemed IDEL, our experienced employment lawyers are available to help you chart the path forward.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.
[1] Note temporary layoffs are typically not permitted unless: 1) the employer has an express contractual right to institute a layoff; 2) there is well established history of prior layoffs specific to the affected employee, the employer, or in the industry generally; or 3) the employee voluntarily agrees to (or condones) the temporary layoff.
[2] See Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 and Fogelman v. IFG, 2021 ONSC 4042.
[3] See Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135.
