Despite the recent announcement of Ontario’s province-wide lockdown now expected to come into effect on Boxing Day, employers may still find some cheer in learning that the COVID-19 period has recently been extended to July 3, 2021. Until then, related measures under the Employment Standards Act, 2000 (ESA), such as those pertaining to the infectious disease emergency leave (IDEL) and temporary layoffs, remain in effect.
Extension to July 3, 2021
On December 17, Ontario filed Regulation 765/20 under the ESA, which extends the COVID 19 period in Regulation 228/20 until July 3, 2021. As a result, the temporary measures set out in Regulation 228/20 will continue to apply. Specifically, for non-unionized employees with a temporary reduction in their hours of work or wages for reasons related to the designated infectious disease during the COVID-19 period:
- they are deemed to be on IDEL;
- they are deemed not to be on layoff for the purposes of the termination and severance rules related to layoffs under the ESA; and
- the reduction does not constitute constructive dismissal under the ESA.
On July 4, 2021, the regular rules regarding layoffs will resume, and the “temporary layoff clock,” so to speak, starts ticking again.
The rollout of the COVID-19 vaccine is now underway. It will proceed in phases, prioritizing vulnerable or higher-risk populations, before access by the general public by the end of 2021. However, it is not yet clear how the vaccine will affect entitlement to IDEL.
Notably, IDEL’s purpose was to provide employees with protections in employment where COVID-19 factors, outside their control, prevented their employment. Therefore, for employees not vaccinated because it is not yet available to them, as well as employees with children who have not received the vaccine, it may be that IDEL would continue to apply.
However, it is unclear whether IDEL would apply to employees for whom the vaccination is available, but who choose not to receive it either for themselves or their children. Here, the choice to vaccinate could be the result of factors outside or within the employee’s control. The extent to which that matters for IDEL eligibility may very well morph into a hot topic next year.
“Will not be mandated”
To date, no legal guidance from Ontario has been published on this issue. Nevertheless, a recent news release regarding the plan developed by Ontario’s COVID-19 Vaccine Distribution Task Force advised that in phases 1 and phase 2 of the rollout, the COVID-19 vaccine “will be administered” to certain vulnerable or higher-risk populations. In phase 3, however, the vaccine will be available to any Ontarian “who wishes” to be immunized, but it “will not be mandated.” How this will – or won’t – affect entitlement to IDEL remains to be seen. We will monitor developments closely.