Ontario (Again) Delays Resumption of Temporary Layoff Rules

For a second time, Ontario has extended its freeze of the ordinary rules governing unpaid temporary layoffs. Pursuant to O. Reg. 765/20, issued under the Employment Standards Act, 2000 (the “ESA”), provincially regulated employers in Ontario are now allowed to keep employees off work in response to the COVID-19 pandemic, without pay, during the period of March 1, 2020 to July 3, 2021.

Ordinarily, the ESA limits temporary unpaid layoffs to a maximum of 13 weeks within any 20-week period (unless special circumstances apply). If employees are not recalled within these 13 weeks, they are deemed to have had their employment terminated and are owed dismissal-related entitlements.

As we first reported in June 2020, the Ontario Government initially suspended the normal operation of temporary layoff rules until September 4, 2020. That deadline was later pushed to January 2, 2021 and has now, again, been extended to July 3, 2021.

In a recent press release explaining its decision to extend the freeze of temporary layoff rules, the Ontario Government wrote:

The regulation's changes include putting non-unionized employees on job-protected leave during the COVID-19 outbreak any time their hours of work are temporarily reduced by their employer due to the pandemic to prevent temporary layoffs from becoming permanent. Under the Act, temporary layoffs become terminations when they exceed the permitted period. Previously set to expire on January 2, 2021, the extension of this amendment ensures that workers remain employed while providing relief to employers. [emphasis added]

Instead of being on a normal temporary layoff, employees put off work due to COVID-19 at any point from March 1, 2020 to July 3, 2021 are considered to be on deemed Infectious Disease Emergency Leave (“IDEL”). IDEL is a job-protected form of unpaid leave. Upon the cessation of IDEL, employees are expected to be recalled to their previous position or, should it no longer exist, a comparable position.

For employers, the ongoing suspension of temporary layoff rules is welcome news. It will allow for greater flexibility in workforce management than minimum standards legislation would ordinarily permit.

For some employees, however, the situation is bleak. As a result of this second extension of deemed IDEL, it is now possible that employees may find themselves without work and pay for a 16-month period. With benefits like CERB now a thing of the past, and no possibility of even receiving dismissal-related benefits until July 2021 (at the earliest), the coming winter may be difficult for many Ontarians desperately awaiting recall.

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.