Ontario State of Emergency: New Deadlines for Recalling Employees

In order to respond to the overwhelming effect of COVID-19 on employers and businesses, the government enacted and implemented Ontario Regulation 228/20 (“Regulation”) into the Employment Standards Act, 2000 (“ESA”). Recalling employees is the top mind for many employers but doing it without care may cause problems. Laid-off employees are understandably anxious to return to work.

The Regulation has allowed employers to temporarily lay-off employees and make unilateral changes to their compensation without triggering a constructive dismissal under the ESA. Instead, employees affected by reduced or eliminated hours could be placed on an unpaid, job-protected leave of absence known as Infectious Disease Emergency Leave. 

Because of the economic effects of COVID-19 on employers, it is likely the government created the Regulation in order to avoid mass termination and constructive dismissal claims, which could be particularly overwhelming for businesses that were forced to shut down during COVID-19. This could be especially true for employers forced to lay-off hundreds of employees or more.

Previously, the Regulation stipulated that any lay-offs and unilateral changes made to an employee’s employment between March 1, 2020, and September 4, 2020, would not result in a constructive dismissal. It, therefore, followed that any lay-offs and unilateral changes made to an employee’s employment after September 4, 2020, could potentially result in constructive dismissal, and an obligation on the employer to provide termination pay. Recalling laid off employees not only can be good for business – but to avoid those claims altogether.

New Developments

In early September 2020, the government announced that the period of Infectious Emergency Disease Leave would be extended to January 2, 2021, in order to further help employers affected by COVID-19 while Ontario re-opens its many services.

What this development means is that employees laid off now or prior to January 2, 2021, will continue to remain on Infectious Disease Emergency Leave, unless the government enacts further changes to the law down the road.     

Any unilateral reductions and changes to the hours and wages of employees after January 2, 2021, could lead to private lawsuits and even claims through the Ministry of Labour. Considering the high degree of uncertainty, employers should be sure to consult with an employment lawyer on how best to handle any previous changes to the employment agreements of employees and how to move forward.

If you are a unionized employee, you will want to consult your collective agreement, as the above will likely not apply to your circumstances. 

Contact Us

If you are an employer who wants to know more about recalling employees how Ontario’s state of emergency will impact your business, or an employee previously placed on Infectious Disease Emergency Leave, our team of experienced legal professionals at Achkar Law can help.

Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.