Ontario has, for a third time, extended the length of Infectious Disease Emergency Leave (“IDEL”). Pursuant to O. Reg. 412/21, IDEL now encompasses a maximum period of March 1, 2020 to September 25, 2021. The practical impact of this change is that employers are allowed to keep employees off work, without pay, in response to the COVID-19 pandemic for an additional three months.
Pre-pandemic, the Employment Standards Act, 2000 imposed strict limits on how long employees could be placed on an unpaid layoff (typically to a maximum of 13 weeks within any 20-week period, unless special circumstances apply). However, to address the unique challenges posed by a global pandemic, in May 2020, the Ontario government created special rules to govern pandemic-related unpaid layoffs.
These new rules took the form of IDEL. As a result of this change, any worker placed on an unpaid leave in response to the pandemic was automatically considered to be on IDEL (as opposed to a traditional unpaid layoff). While IDEL certainly provides employers with much greater staffing flexibility, it does come at a cost to workers. For the worst-affected employees, being placed on IDEL may result in a period of almost 19 months of no work and no pay.
The current extension to the length of IDEL is the third since its introduction (we have reported on past IDEL extensions here and here). With the steady progress Ontario has been making with respect to vaccinating its population, however, it seems likely that this will be the final extension of IDEL. Accordingly, both employers and employees alike should plan for IDEL to end as of September 2021 and be prepared to either have staff return to work or provide severance payments where appropriate.
Note that, at present, it remains to be seen whether IDEL will impact upon common-law employee rights. This is a subject where courts have, to date, issued inconsistent rulings (see: Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 and Taylor v. Hanley Hospitality Inc. 2021 ONSC 3135).
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.