Employment Law Update: Regulation 228/20

On May 29, 2020, the Government of Ontario filed Regulation 228/20 – Infectious Disease Emergency Leave (the “Regulation”), which amends the Employment Standards Act, 2000. The Regulation addresses deemed leave, temporary layoffs, and hour and wage reductions during the “COVID-19 period” and applies, for the most part, to non-unionized employees. Below is a summary of some of the changes that could impact workplaces across Ontario.

Please note that there are exceptions to these summarized provisions in certain circumstances.

The “COVID-19 period” and the Designated Diseases

The Regulation provides that the “COVID-19 period” is the period beginning on March 1, 2020 and ending six weeks after the day following the declaration that the current emergency (as declared by Order) is terminated or disallowed.

The diseases designated as infectious diseases include diseases caused by a novel coronavirus, including Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and coronavirus (COVID-19).

Deemed leave

An employee is entitled to a leave of absence without pay if the employee is unable to perform their job duties due to prescribed reasons related to COVID-19.

Under the Regulation, if an employee’s hours of work are temporarily reduced or eliminated by the employer for reasons related to COVID-19, and an employee is not performing the duties of their position, they will be deemed to be on infectious disease emergency leave in respect of any time during the COVID-19 period that those circumstances apply. Of note, if the employer was not making benefits plan contributions before May 29, 2020 during the COVID-19 period, then the employer is exempt from the requirement to continue contributing to any benefits plan while the employee is on leave.

Temporary Layoff and Constructive Dismissal

The Regulation also addresses whether a layoff constitutes constructive dismissal during the COVID-19 period.

If an employee’s hours are temporarily reduced or eliminated by the employer, or their wages are temporarily reduced, for reasons related to COVID-19, it will not result in a temporary layoff, as defined by the ESA, during the COVID-19 period, unless the employer laid off the employee because of a “permanent discontinuance of all of the employer’s business at an establishment”.

This does not apply to an employee whose employment was deemed terminated as a result of layoff for a period longer than the “temporary layoff” period, as defined by the ESA, prior to May 29, 2020.

The Regulation also provides that if an employee’s hours are temporarily reduced or eliminated by the employer, or their wages are temporarily reduced, for reasons related to COVID-19, it will not constitute a constructive dismissal, during the COVID-19 period.

Again, this does not apply to an employee who has resigned from employment following a constructive dismissal prior to May 29, 2020.

Reduction in hours of work and wages

An employee’s hours of work are considered to be reduced if:

1. Where the employee has a regular work week, the employee works fewer hours in the work week than they worked in the last regular work week prior to March 1, 2020;
2. Where the employee does not have a regular work week, the employee works fewer hours in the work week than the average number of hours they worked per work week in the period of 12 consecutive work weeks that preceded March 1, 2020; and
3. Where the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee works fewer hours in the work week than they worked in the work week in which they worked the most hours.

An employee’s wages are considered to be reduced if:

1. Where the employee has a regular work week, the employee earns less regular wages in the work week than they did in the last regular work week prior to March 1, 2020;
2. Where the employee does not have a regular work week, the employee earns less regular wages than the average amount of regular wages they earned per work week in the period of 12 consecutive work weeks that preceded March 1, 2020; and
3. Where the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee earns less regular wages than they did in the work week in which they earned the most regular wages.