In the ever-changing employment law landscape of 2020, it can be hard to keep pace and understand your options and responsibilities for your workforce. This blog will discuss some of our clients’ frequently asked questions about leaves, layoffs and terminations.
Covid Related Leaves of Absence
The COVID pandemic does not give employees an automatic right to be away from work whenever they choose. Leaves related to COVID are provided for in certain situations under the Employment Standards Act, 2000 (“ESA”) or the Human Rights Code.
Section 50.1 of the ESA provides for Infectious Disease Leave, which is further broken down into entitlements for a Declared Emergency Leave and an Infectious Disease Leave, however Declared Emergency Leave ended when Ontario lifted its Emergency Order. Infectious Disease Leave (“IDL”) will continue to be available for the foreseeable future.
IDL is a protected leave of absence without pay if the employee will not be performing the duties of the position because of one or more specific reasons related to a designated infectious disease, including that:
(i) The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
(iii) The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
(v) The employee is providing care or support to an individual referred to in subsection (8) [i.e., an immediate family member] because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
For example, employees who are instructed to quarantine for 14 days or told by a doctor to self-isolate due to a pre-existing medical condition can access IDL. If schools or daycares close as a result of COVID cases in the school population or because of a future provincial direction, this leave will be available to employees with younger children. The Provincial Government recently published a media release stating, “Employees at businesses that have fully reopened continue to have job protection through the Infectious Disease Emergency Leave if they need to stay home…or take care of a loved one due to COVID-19. This includes parents who decide not to send their children back to school due to concerns about COVID-19.” This provides guidance that the leave will provide protection for those workers who choose to keep their children home from school or daycare which are still open.
The Human Rights Code may require employers to grant a leave of absence in some circumstances, but beyond that, it could also apply to require employers to provide accommodated schedules, working from home or decreased hours. COVID is very likely to be considered a “disability” under the Code and working parents or care givers to elder parents may be able to rely on “family status” to access accommodations to their job that allows them to navigate the challenges COVID presents.
Under the ESA, temporary layoffs are normally allowed up to 13 weeks in any period of 20 weeks or an extended period of 35 weeks in any period of 52 weeks if some payment or benefit is continued. At the end of the 13/35 weeks, if the employee is not recalled, the ESA normally deems employment to have been terminated as of the first day of layoff.
However, in May 2020, the Ontario government introduced O Reg 228/20, which provided that any employee whose hours of work have been temporarily eliminated or reduced during the “COVID-19 Period” is deemed to be on an infectious disease leave, not a layoff. The COVID-19 Period was initially defined as the period between March 1, 2020 and September 4, 2020, but has now been extended to January 2, 2021. As a result, if an employer still cannot recall employees to work on January 2, 2021, the 13/35 clock for layoffs will begin running again.
Termination entitlements under the ESA are not impacted by COVID. The usual rules with respect to notice and severance continue to apply. However, it remains to be seen whether common law reasonable notice will be adjusted for the pandemic landscape. Courts have not historically adjusted notice periods to take into account an employer’s financial hardships, but the broad and significant financial impact of COVID certainly creates a compelling case for this argument to be made. On the other hand, courts consider the terminated employee’s chances of finding new, comparable employment. Where finding a job is more difficult due to the state of the current job market, this could work to increase employees’ common law reasonable notice entitlement. Unfortunately, it will take some time before we start to see court decisions being released to provide us with guidance in this regard.
Are you an employer with questions on how leaves, layoffs and terminations are impacting your business? Reach out to a member of Siskinds’ Labour & Employment Group for advice.