Under the Employment Standard Act (ESA), significant changes have been made to employer and employee rights in Ontario during the COVID-19 pandemic.
- The ESA’s temporary layoff rules no longer apply to employees whose wages or work hours have been temporarily reduced or eliminated due to COVID-19. This means there are no more 13- or 35-week limits on COVID-19 related layoffs.
- For ESA purposes, employees cannot be constructively dismissed by reducing or eliminating their wages or work hours due to COVID-19. However, temporary layoffs or hour or wage reductions may still be a constructive dismissal under the common law even if COVID-19 related.
- Employees whose work hours have been temporarily reduced or eliminated due to COVID-19, including employees on temporary COVID-19 layoffs, are deemed to be on a job-protected leave of absence. This means that once the COVID-19 pandemic is over, employers must reinstate them to their same positions (or a similar position, if the same position no longer exists), just like employees on other ESA leaves.
These new changes do not apply to employees whose 13/35-week temporary layoff period already expired or who quit in response to an alleged constructive dismissal, or who were permanently terminated prior to May 29, 2020. These changes will remain in effect until six week after the COVID-19 state of emergency is lifted.
These changes will provide employers much needed flexibility in managing their workforces during this difficult time. However, employers must keep in mind that temporary layoffs or wage reductions may still be considered a constructive dismissal at common law. Employers must also be much more careful about terminating employees who are currently on temporary layoffs now that these employees have been granted a job-protected leave.
With respect to termination and severance pay, if an employee is laid-off for a period longer than a temporary layoff, the employer is considered to have terminated the employee's employment and they would generally be entitled to termination pay (and in certain cases severance pay).
Moreover, an employee is not considered to be laid-off if their employer temporarily reduces or eliminates their hours of work for COVID-related reasons. This means the layoff clock stops ticking towards becoming a termination of employment.
With respect to a constructive dismissal, an employee is not considered to be constructively dismissed under the ESA if their employer temporarily reduces or eliminates their hours of work or wages for COVID-related reasons.
Please stay safe during this pandemic, from everyone at JEWELL RADIMISIS JORGE LLP
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