Ontario’s Return to the Colour Coded Framework

February and March 2021 will be a crucial period in Ontario’s struggle with the coronavirus pandemic. Schools are re-opening (again), stay-at-home orders are being lifted, and certain COVID-19 regulations have been extended. Here are some key developments that employers need to know:

Lifting of Shutdown and Stay-at-Home Orders

In December 2020, the Ontario government announced a province wide shut down to curb the spread of COVID-19 within the province. With COVID-19 cases continuing to rise and provincial ICUs nearing capacity, on January 12, 2021, the government issued a stay-at-home order and declared a provincial emergency. Following the imposition of these restrictions, the number of new cases reported in Ontario dropped almost 75%, from an average of 3500 per day to only 904 on February 16, 2021.

With the drop in positive cases around the province, the provincial government announced that it would begin a phased return to the COVID-19 colour-coded zone response framework. The phased return began on February 10 with the lifting of the shutdown and stay-at-home orders in three public health unit regions. Most of the remaining Ontario health unit regions shifted back to the colour-coded framework on February 16, with Peel, Toronto and York Region scheduled to shift back to the framework on February 22, 2021.

Although the shutdown and stay-at-home orders are being lifted, employers are still being encouraged to maintain restrictions where possible including:

• limit the number of people at the workplace
• encourage employees to work from home if possible
• maintain social distancing policies
• require people in your place of business to wear face masks and other appropriate personal protective equipment
• implement a questionnaire to screen all employees entering the work environment for COVID-19 symptoms
• implement passive screening for patrons (such as posting signs outside the business asking them not to enter if they have symptoms); and
• apply all other applicable public heath advice measures.

Schools Re-opening

The reopening of schools across Ontario is sure to be welcome news for many employees and employers as employees with school age children, who were forced to work from home or take time off from work to care for their children, will once again be able to return to work. Employers should be aware that employees who were not working because they were caring for children due to school closures were considered to be on a job-protected leave under the Employment Standards Act (ESA), so once their children return to school, they must be permitted to return to their jobs without being penalized for their absence.

Temporary Layoff Clock Frozen Until July 3, 2021

Temporary layoff rules under the ESA were revised in response to COVID-19, retroactive to March 1, 2020. Under the revised rules, non-unionized employees whose work hours have been reduced or eliminated because of COVID-19 are classified as being on a leave of absence, rather than a temporary layoff. The temporary layoff “clock” is essentially frozen and layoffs can continue indefinitely.

This freezing of the temporary layoff clock has been extended several times and is currently scheduled to extend until July 3, 2021. But, if there has not been a significant shift to businesses reopening by that date, it is entirely possible that the freeze will be extended further.

If the Ontario government does not issue a further extension, the regular temporary layoff clock will start ticking again on July 3, 2021. This means that temporary layoffs will be permitted to continue for an additional 13 weeks after that date (or 35 weeks if benefits are continued).

Infectious Disease Emergency Leave extended to July 3, 2021

The government has also extended the Infectious Disease Emergency Leave (IDEL) to July 3, 2021. As previously reported, the IDEL lets employers temporarily reduce or eliminate non-unionized employees’ work hours or wages without concern that the reduction will be considered a layoff or constructive dismissal under the ESA. Instead, temporary reductions in work hours or wages are considered a job-protected IDEL. Employees on job-protected IDELs are not considered to be constructively dismissed or temporarily laid off under the ESA.

Employers should know that the recent changes to the ESA in response to COVID-19 may not affect how courts determine whether employees have been constructively dismissed at common law and this has not yet been tested in an Ontario court. Hence, as the length of a reduction or elimination of work increases, the risk that a court will find that the employee was constructively dismissed at common law also increases.