It is beginning to feel a lot like Groundhog Day. For the fourth time since its inception, the Ontario government has extended the length of Infectious Disease Emergency Leave (“IDEL”). It will now operate until at least January 1, 2022. [Click here for our coverage of previous IDEL extensions.]
IDEL is an unpaid employee leave created by the Ontario government to address the economic ramifications of COVID-19. It allows employers to place their workers on a special form of layoff for reasons related to the pandemic. In so doing, IDEL bypasses traditional statutory legal constraints on unpaid layoffs (which are normally limited to a period of no more than 13 weeks, absent special circumstances).
With its fourth extension, IDEL will cover a period of up to 96 weeks. This means that the worst affected employees may now find themselves off work, and without pay, for nearly 2 full years.
It remains unclear whether employees can object at common law to being placed on IDEL. Three decisions have now been released by the Ontario Superior Court of Justice on this question and the results are mixed. Two judges[1] determined that placing an objecting employee on IDEL amounts to a constructive dismissal (thus triggering a requirement to pay severance) while a third[2] came to the opposite conclusion.
At this point, it is apparent that the Ontario Court of Appeal will have to weigh in on the matter. We will continue to keep readers apprised of the status of IDEL and the legal repercussion of its use as determined by the Courts.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.
[1] Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 and Fogelman v. IFG, 2021 ONSC 4042.
[2] Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135.