Latest COVID variant leaves employment uncertainty in its wake

By Tony Poland, LegalMatters Staff • The Omicron surge has left many employers and workers with even more doubt and uncertainty when it comes to their rights and responsibilities, says Toronto employment lawyer Ellen Low.

Low, principal of Ellen Low & Co., says the employment world was looking to return to some sense of normality last year until the latest COVID strain hit suddenly, forcing yet another lockdown.

“From a very practical perspective, many employers had policies in place to get workers back in the office as of February. Now, lo and behold, we are back to a modified lockdown stage so no one is going back soon,” she tells LegalMattersCanada.ca. “It is difficult to predict what will happen next, which leads to confusion. My advice is to keep an eye on the news and develop a relationship with an employment lawyer regardless of whether you are an employer or an employee, because things are happening so quickly. If nothing else, we are a good resource in terms of trying to keep an eye on what has changed, what the current policies are and what protections are available.” 

Public health concerns, economy were priorities

Low says there was a lot of employment news to take in as the year closed out. Saying public health concerns and the economy were priorities, the federal minister in charge of aid to the unemployed announced jobless Canadians who refuse to get vaccinated may be denied benefits.

In an earlier announcement in December, the Ontario government said that it would again be extending the “COVID-19 period,” this time until July, 2022. It was set to expire on Jan. 1. Low says this was a significant change because it means employees who have their hours of work temporarily reduced or eliminated for COVID-related reasons are deemed to be on Infectious Disease Emergency Leave (IDEL) rather than on a temporary layoff. 

She explained the IDEL amendment to the Employment Standards Act, 2000 (ESA) means non-unionized employees who have had their hours or pay reduced or cut due to COVID-19 are preventing from filing a complaint of constructive dismissal to the Ministry of Labour. The amendment also removes the deemed termination timeline for employees on lay-off.

At the same time, the government also announced it would extend its Worker Income Protection Benefit program, which was due to expire at the end of 2021, until July, 2022. The program was put in place to provide paid sick days to workers who miss work for reasons related to COVID-19.

 Province offers help to businesses

At the beginning of 2022, the province unveiled the Ontario Business Costs Rebate Program, which will allow eligible businesses to receive payments equalling about 50 per cent of property tax and energy costs while capacity restrictions are in place.

Also this month, the Ontario government announced it would provide “targeted relief for businesses and people impacted by the current public health measures,” introducing a $10,000 grant for eligible businesses that were closed under the modified Step Two of the Roadmap to Reopen.

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Low says help for businesses is important.

“Employers continue to pay rent and they are trying to do everything they can to stay afloat. There are supply chain issues,” she says. “You really have to feel for restaurants who are having a difficult time getting and retaining staff. They were back to capacity, had trained people, restocked their shelves, tapped the kegs, and now we have restrictions. Again, we are back to where we were.”

Meanwhile, laid off employees remain in limbo, Low says.

‘We are pivoting again’

“We are pivoting again. The further extension of the IDEL is significant. You have people who potentially have been on layoff since the start of the pandemic and it is leaving many wondering what is next,” she says. “These employees have not been recalled. They haven’t been fired. They are on this Infectious Disease Emergency Leave, which is unpaid. 

“Originally you could at least access benefits such as the Canada Emergency Response Benefit. But what I haven’t seen yet is an extension of those benefits.”

Low says she has been fielding questions from employees hoping to get some clarity.

“People are now still on this infectious disease emergency leave, but unless they qualify for new recovery programs, they are left asking how to pay their bills,” she says. “They are saying, ‘I am on IDEL, I’m hoping I have a job to go back to, but where am I supposed to get money in the meantime? There are no other government benefits coming my way.’

No clear direction

“This may be the governments’ way to incentivize employees to take other positions but it certainly creates some problems, especially when we don’t have any clear direction from the court about whether or not being put on IDEL was actually a constructive dismissal under common law,” Low adds.

Still, she says there are signs that Omicron has reached its peak and restrictions can be lifted before too long. 

“If I am being optimistic, I believe people are finding new jobs. I’m certainly seeing a fair uptick in new contract reviews and people who are being offered alternate positions,” say Low. “Employees are either giving up old work or moving into positions or at least exploring opportunities. And there are certainly some employers who are hiring. That is reason for optimism.”