The temporary layoff clock unfreezes on July 31, 2022: What employers need to know in preparation for the end of Infectious Disease Emergency Leave (O. Reg. 228/20)

Written by: Elliot Saccucci, Tahir Khorasanee and Isabelle Nazarian (Summer Student). 

According to the temporary measure, during the “COVID-19 period”, between March 1, 2020, to July 30, 2022, a non-unionized employee who has their hours of work temporarily reduced or eliminated due to COVID-19 will be deemed to be on an Infectious Disease Emergency Leave (“IDEL”) and not laid off or constructively dismissed under the ESA.

After IDEL, what happens next?

Employers with employees on IDEL need to take quick action after the temporary measure expires on July 30, 2022, and the regular rules for temporary layoff under the ESA resume. Employees will once again be able to file a complaint with the Ministry of Labour, claiming that their employment was terminated.

Accordingly, as of July 31, 2022, employers should decide whether their employees on IDEL will be:

(i)              immediately recalled;

(ii)            placed on temporary layoff for 13 weeks without the continuation of benefits; or

(iii)          placed on temporary layoff for 35 weeks with the continuation of benefits.

The employer will be required to pay the entire amount required under the ESA for severance and termination entitlements if the employee is not recalled by the end of the relevant period.

Employers should be aware, that if an employee only had two months of employment prior to being placed on IDEL for two years, their ESA entitlements to termination and severance should be calculated based on two years and two months. Employers may also be subject to additional punitive and aggravated damages if the ESA minimum is not paid.

Our Employment and Labour team is here to help if you have any further questions about recalling employees after the end of IDEL or determining how much the employee is otherwise entitled to.