On September 16, 2021, the Ontario government announced that it would extend the temporary measures found in O. Reg 228/20 Infectious Disease Emergency Leave (IDEL). The extension is to end on January 1, 2022. The government has also extended Ontario’s Worker Income Protection Benefit (“WIPB”) which provides employees with up to 3 days of paid leave because of certain reasons related to COVID-19 until December 31, 2021.
The result of the extension is that non-unionized employees who are subjected to IDEL because the employer reduced or eliminated their hours will continue to be deemed to be on IDEL. As indicated in our previous newsletters, employees who are subject to IDEL due to a reduction of hours or elimination of hours due to COVID-19, are deemed to be on IDEL leave (not temporary layoff) and shall not considered to be constructively dismissed under the Employment Standards Act (the “ESA”).
It is also important to note that in recent decision from the Ontario Superior Court (Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135), the Court confirmed that an employee properly placed on IDEL leave pursuant to the terms of the ESA is not constructively dismissed under the common law. This case is being challenged to the Ontario Court of Appeal, and therefore, the issues surrounding constructive dismissal under the common law arising from reductions of hours, pay and necessary layoffs due to COVID-19, remains to be fully determined.