Infectious Disease Emergency Leave deeming provisions are ending

By Tony Poland, LegalMatters Staff • The deeming provisions of the Infectious Disease Emergency Leave  (IDEL) are set to end as of July 30, so employers would be wise to ensure they are ready for the change, says Toronto-area employment lawyer Brittany Taylor.

“You don’t want to be making the decision on what you need to do at the eleventh hour,” says Taylor, a partner at Rudner Law.  “If you’re an employer who has placed employees on Infectious Disease Emergency Leave you really need to start thinking now about what you are going to do when July 30 rolls around. Am I recalling those workers? Am I terminating them? Am I going to try to get them on a temporary layoff if I need more time? These are questions you want to start thinking about now, not in July.

“Planning what you are going to do and getting legal advice is essential so you can ensure those next steps you take are lawful and are not going to expose you to liability,” she tells LegalMattersCanada.ca. “It absolutely is a significant change that is about to happen, especially for those who still have workers on this leave.”

IDEL introduced in response to COVID-19 pandemic

The Ontario government amended the Employment Standards Act, 2000 (ESA) two years ago to include IDEL in response to the ‎COVID-19 pandemic. The regulation provides employers with relief ‎from notice of termination and severance provisions of the ESA.‎

Under IDEL, a nonunionized worker whose hours are reduced or eliminated because of the coronavirus is deemed to be on job-protected unpaid leave and therefore not on a temporary layoff, which has established time limits, or considered to be constructively dismissed. The government also introduced paid IDEL for those who had to take time off work for COVID-19 reasons, which will also expire at the end of July.

IDEL has been extended several times, including last December. But Taylor says it doesn’t appear that will happen again.

“Mandates have been lifted. Things are getting back to some normalcy,” she says. “In the past when we were dealing with rising COVID cases, we were always reasonably confident IDEL was going to be extended because of the circumstances that we found ourselves in. 

“We are in a very different world now, so I would be surprised if it was extended,” Taylor adds. “It has become easy to kind of ignore the deadline. But we really do need to think of this more like a hard deadline this time. I expect this will actually be the final end to the deemed Infectious Disease Emergency Leave as well as the paid Infectious Disease Emergency Leave.”

Leave will still be available for those unable to work

However, while the protections will cease to exist, IDEL will still be available for employees who are unable to work due to COVID, she says.

“It is important for employers and employees to understand that it doesn’t mean the Infectious Disease Emergency Leave is going away. It will take the form of an unpaid leave, just like other statutorily protected leaves available under the ESA,” Taylor explains. “What is going to change is that an employee is no longer going to be deemed to be on IDEL if their employer sends them home for reasons related to COVID-19. The reason that IDEL was created was so that employers didn’t have to worry about time limits for temporary layoffs and employees were not automatically deemed to be dismissed if they could not be recalled within the time limits established in the ESA.

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“Employees could be off for months, or in some cases the entire two-year period the leave has been in effect. Those leaves would not be deemed a termination or constructive dismissal for purposes of the ESA.”

Once deemed IDEL is no longer available to employers, if they aren’t able to recall an employee to work, they will have to either dismiss them or place them on a temporary layoff, she says.

However, Taylor cautions that “there’s no free-standing right to place an employee on a temporary layoff.”

An employee must agree to a layoff

“The employee has to agree to it. If the employer doesn’t have an employment agreement or policy in place that allows for a temporary layoff, in most cases they cannot just impose one,” she says. “The employee must agree to the layoff. And even if a layoff is possible, employers need to be mindful of the 13-week time limit, which is the generic limit of a temporary layoff unless some compensation or benefits are being provided to the employee during this time, in which case it can be extended up to 35 weeks.”

The employee must be brought back to work within the 13-week period or their employment will be deemed to be terminated, which will entitle them to termination pay and, possibly, severance pay, Taylor says.

Workers will still have the right to request a leave for COVID-19 related reasons, she says.

“If you have an employee who legitimately still needs to be on this leave, you don’t get to tell them on July 30, ‘IDEL is gone, you have to come back to work,’’’ she says. “That is a misunderstanding that could lead to liability under the ESA because this is a job-protected leave of absence. 

She says some employers will soon have difficult decisions to make.

“They are going to have to start thinking about how to return people to work or they need to offer them severance packages,” says Taylor. “These workers must be brought back. It will no longer be the employer’s option. And if an employer is packaging employees out, they must provide notice or pay in lieu of notice. So definitely they will want to get legal advice about that from an employment lawyer. Our firm has been assisting both employers and employees to prepare for the end of deemed IDEL and navigate the recall to work process – I encourage anyone who has questions to reach out to us.” 

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