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COVID-19 Employment Leaves Extended Again

December 9, 2021

It’s December 2021 and two weeks of dealing with COVID-19 has turned into two years. COVID-19 continues to affect our daily lives and new strains are emerging – like Omicron (great name for a transformer). With daily case counts rising, on December 7, 2021, the provincial government once again extended the COVID-19 related leave provisions of the ESA.

Paid Sick Days Extended until July 31, 2022

The Worker Income Protection Benefit (WIPB), which gives most employees in Ontario three days of paid leave if they cannot work because of a COVID-19 related cause, has been extended until July 31, 2022. Employees who take a day off provided by the act will continue to be paid their full daily salary up to a maximum of $200 per day. Employers who did not provide at least 3 paid sick days to employees prior to April 19, 2021 can seek reimbursement from the government for those paid sick days. It is noteworthy that while employer provided sick day entitlements reset for many employees on January 1, the government has not indicated that employees will be entitled to any additional COVID-19 related paid days off under the WIPB in the new year.

IDEL Extended to July 30, 2022

In the same news release, the government indicated that it is extending temporary changes to the ESA that prevent temporary layoffs of non-unionized employees from becoming unwanted terminations.

The Infectious Disease Emergency Leave (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.
As 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 – at least under the ESA.

Effect of IDEL on Common Law Still Up In the Air

Employers should know that the IDEL may not protect employers from constructive dismissal claims at common law. There have been conflicting decisions on this matter from the Superior Court. The first of these cases that will be heard by the Court of Appeal is Taylor v Hanley Hospitality o/a Tim Hortons. In Taylor, the court ruled that it was not a constructive dismissal for employers to place employees on IDEL. The appeal is scheduled to be heard on April 1, 2022. Interestingly, the Ontario Government has sought the right to intervene in the appeal and will argue the IDEL does not remove a laid off employee’s right to claim constructive dismissal at common law.