Temporary Layoff Clock set to begin again: Are you prepared?

As we discussed earlier this summer, the Ontario government enacted temporary layoff changes to the Employment Standards Act, 2000 (ESA) to assist employers and employees alike during the COVID-19 crisis.

The changes, which were such that terminations of non-unionized workers would no longer be triggered after a thirteen-week layoff or reduction in hours, spared employers the expense of notice payments while allowing workers to access emergency government funding until they could hopefully return to work.

Their purpose was to help businesses avoid bankruptcy while preserving jobs.

Perhaps a reflection of the hope that the effect of COVID-19 on business would be temporary and that workplaces would soon return to normal, the amendments were set to expire six weeks after the end of Ontario’s state of emergency.

With the passage of Bill 195, Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020, the state of emergency in Ontario came to an end on July 24, 2020.

This means that on September 4, 2020, the standard temporary layoff rules under the ESA will apply. If employers cannot recall employees back to work or restore their wages on or before September 4, employees will be deemed to have been terminated and will be entitled to termination notice.

It also means that going forward, employers will once again only be able to temporarily layoff employees for up to thirteen weeks in a twenty-week period, which can be extended to thirty-five weeks in a twenty-week period.

It is important to note that while Bill 195 has ended deemed infectious disease emergency leave, regular infectious disease emergency leave still applies. Employees are entitled to leave work if:

• they are under medical investigation, supervision or treatment for COVID-19;
• they are following an Order under the Health Protection and Promotion Act;
• they are in quarantine or isolation in accordance with public health guidelines;
• they have been directed to not work due to COVID-19 workplace concerns;
• they must provide care to an individual for a reason related to COVID-19; or if
• they cannot return to Ontario due to travel restrictions.

Employees can continue to qualify for regular infectious disease emergency leave for as long as COVID-19 remains an “infectious disease” as defined by the ESA.

If they do not qualify for regular infectious disease emergency leave, employers must start making decisions about whether to recall their employees back to work. This is vital in order to avoid potential claims for wrongful dismissal.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. If you have any questions on temporary layoffs, COVID-19 and your workplace or are planning on reopening and bringing the employees back to work, please contact us or call us at 905-477-7011. Sign up for our newsletter to receive up-to-date COVID-19 information, including new legislation and Court decisions impacting your workplace.

Please note that this article is for informational purposes only and does not constitute legal advice.

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