COVID-19 has resulted in a flurry of changes to legislation throughout Ontario and Canada. In order to stay on top of the changes, we have provided a summary of the changes to Ontario and the Federal legislation below:
Ontario modified the Employment Standards Act, 2000 (“ESA”), by implementing the Emergency Leave: Declared Emergencies and Infectious Disease Emergencies. This resulted in amendments to section 50.1 of the ESA pertaining to emergency leave. Generally speaking, an employee that requires leave as a result of the prescribed circumstances as outlined below are entitled to a job protected, unpaid leave of absence during the period of the emergency declaration, which has most recently been extended to July 15, 2020. This will almost certainly be extended. On Tuesday July 7, 2020, the government introduced new legislation, Bill 195, which would give it the power to extend the emergency declaration for additional periods of thirty (30) days. If the Bill is passed, the Ontario Government will also have the power to keep extending the thirty (30) day period for one (1) year.
An employee is entitled to take a COVID-19 leave if unable to perform the duties of his or her position because the employee is:
- under medical investigation, supervision or treatment for COVID-19;
- acting in accordance with an order under the Health Protection and Promotion Act;
- in isolation or quarantine in accordance with public health information or direction;
- directed by the employer not to work due to a concern that COVID-19 could be spread in the workplace;
- needed to provide care to someone for a reason related to COVID-19 such as a school or child care closure; or
- prevented from returning to Ontario because of travel restrictions.
An employee who takes COVID-19 leave is entitled to reinstatement to the same job he or she held before the leave commenced, or a comparable job if the job no longer exists. Despite this statutory obligation, an employer is entitled to terminate an employee if the termination is for reasons that are entirely unrelated to the fact that the employee was required to take the leave.
On May 29, 2020, the Ontario government passed Regulation 228/20 Infectious Disease Emergency Leave, which amended the ESA further. The Regulation provided, in part, relief for employers from termination and severance pay obligations where there has been a temporary reduction of hours or an elimination of an employee’s hours of work. The changes are retroactive to March 1, 2020 and continue during the declared emergency leave. The Regulation specifically provides that reduction or elimination of hours of work due to the pandemic shall not constitute constructive dismissal. It remains to be seen whether a Court will interpret these legislative changes as protection against allegations of constructive dismissal under the common law. It is notable that these legislative changes do not apply to unionized employees.
Canada Labour Code
On March 25, 2020, the Federal government passed Bill C-13, COVID-19 Emergency Response Act, containing various measures designed to deal with the pandemic. It included a change to 239.01 of the Canada Labour Code and provided for an unpaid leave of up to sixteen (16) weeks for employees who could not work, or were not available to work because of reasons related to COVID-19. The leave came into force on March 25, 2020.
The leave requires that an employee give written notice to the employer as soon as possible with respect to the reasons for the leave and the intended length. Employers are able to require a written declaration in support of the leave.
Employers are not permitted to dismiss, suspend, lay-off, demote or discipline an employee because they take the leave. Benefits are required to be continued during the period of leave, and vacation was able to be interrupted in order to take COVID-19 Leave. In addition, parental leave was also able to be interrupted as a result of COVID-19 leave.
Canada Emergency Response Benefit (“CERB”)
As part of Bill C-13, the government also introduced the Canada Emergency Response Benefit Act. This allowed employees and any workers who had made at least $5000.00 in the previous year, to qualify for a monthly payment of $2,000.00. In order to qualify, the worker must have stopped working for reasons related to COVID-19 for at least 14 consecutive days within a four-week period for which they were to receive payment, and not received income whether from employment, self-employment, employment insurance, or allowances under a provincial plan because of pregnancy. Any employee who quit their employment voluntarily is not eligible for CERB.
Due to unintended consequences of workers failing to return to work after businesses were permitted to re-open, the Federal Government has introduced new legislation (Bill C-17) that will amend the Canada Emergency Response Benefit Act and will place some reasonable limitations on the entitlement to this benefit which may encourage workers to return to the workplace. In particular, a worker will not eligible for an income support payment if they
- fail to return to work when it is reasonable to do so and the employer makes a request for their return;
- fail to resume self-employment when it is reasonable to do so; or
- decline a reasonable job offer when they are able to work.
The legislation has not yet been passed. These changes will be welcomed by employers given that the economy is starting to re-open and the Federal Government has just announced that it will extend CERB to August 29, 2020.
We will continue to keep you updated as to any important legislative changes. If you have any additional questions with respect to any of the legislative changes that have been made in response to the pandemic, please contact us.