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Legally, all staff on pandemic layoff are coming back to work on July 4. Are we ready? 

By: Bill Zolis

Even though we are currently in the third wave of the Covid pandemic, with daily numbers of reported infections higher than at any time since the start of the crisis, we do have to start looking seriously at the post-pandemic world of employment law, best practices and how to handle all of the inevitable fall-out on our path back to “normal.” 

During the past 14 or 15 months, we have all been in uncharted waters, to say the least, and the consensus among employees, employers and governments has been to be as reasonable and accommodating as possible, and to pull together to get through the crisis as best we can. 

But that can’t last forever. At some point, the temporary measures and accommodations have to come to an end, and we’ll have to deal with what could be sudden tidal wave of employment status issues that have been deferred for a year and a half. 

In Ontario, at least, that point may arrive on July 3, 2021. 

That is when the key provisions of the Infectious Disease Emergency Leave regulation, made under the Employment Standards Act, are set to expire. (We can speculate that the provincial government might extend the regulation – they can do that any time by Cabinet order, since regulations do not need to go through the legislature – but these provisions will expire at some point, and the impact will be considerable.) 

The Infectious Disease Emergency Leave regulation came into effect on March 1, 2020, and is set to expire on July 3, 2021. Its key provisions were as follows: 

– All non-union employees who have had their hours reduced or eliminated are deemed to be on job-protected infectious disease emergency leave; 

– They are not considered to be “laid off” in the usual meaning of the term; 

– They are not considered to be “constructively dismissed” under the Employment Standards Act (and thus do not have rights to severance or other legal recourse). 

In other words, the regulation put everything of hold during the term of the emergency. During this period, employees have three significant rights: 

– To be reinstated to their regular employment following the emergency leave period; 

– To be free from any penalty related to their emergency leave; 

– To continue to earn seniority and length of employment. 

However, what happens when the legal hold comes off – for now, on July 3 – is another story. Basically, all of the rules governing the employment relationship that were in effect before the pandemic kick in automatically again 

According to the Ontario government web page on the subject, what will happen as of July 4 is as follows: 

– Employees who are off work or working reduced hours due to the pandemic will no longer be deemed to be on infectious disease emergency leave as defined in the regulation – although there is a small asterisk on that provision: some employees can continue to be off on emergency leave if they can demonstrate a clear, Covid-related reason; 

 The rules regarding constructive dismissal under the Employment Standards Act will again apply; 

– The rules regarding temporary layoff will kick back into force. 

But what does it mean in practical terms? 

From where I sit, and what I’ve been able to learn from the experts, I think it means the following – bearing in mind that I’m not an employment lawyer: 

– If, as of July 4, an employer cannot take an employee back – for lack of available work, for example – that employee will be considered “laid off” and eligible for severance 

– As I understand it, there is no automatic right of employers to temporarily lay off staff, unless the work is seasonal, or the possibility of lay off is part of the employment agreement, or if the employee agrees. 

– If, as of July 4, an employee is called back to work and does not return – without a generally accepted good reason, such as sick leave or an accepted Covid-related reason under the exception to the July 3 cut-off – that employee may be considered to have abandoned employment and may be terminated in the usual manner. 

– The rules of constructive dismissal mean that if an employer does not, or is not able to bring back an employee to essentially the same job, the employee can claim to have been effectively dismissed and be eligible for severance and possibly other legal remedies. 

There is also an important benefits angle here. 

Under the emergency leave regulation, and according the government website, if an employee stopped participating in a benefit plan as of May 29, 2020, they do not have a right to continue in that plan while on the deemed leave. Employers are not required to maintain those plans during the period of the emergency leave. 

Okay. I think that means, legally, benefits plans for people off on deemed emergency leave were on hold (although some employers were able to continue them). And, equally, those benefits plans come back into effect on July 4. 

Of course, when the emergency regulation was issued back in the winter of 2020, no one had any idea that there would be third wave more than a year later. Even the prospect of vaccines for Covid seemed doubtful at that point. 

It may be that the emergency leave provisions have to be extended. It may also be – and I much prefer this possibility – that the pandemic will finally be waning by July 3, and that we will be able to start picking up the pieces by that time. 

Either way, we should all be thinking ahead and planning for the practical aspects of getting back to normal. 

*** 

I really appreciate comments, ideas, suggestions or just observations about the blog or any other topics in benefits management. I always look forward to hearing from readers. If there’s anything you want to share, please email me at bill@penmore.com 

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