The Holes of O Reg. 228/20: Constructive Dismissals and Infectious Disease Emergency Leave

On May 29, 2020, and in response to the global COVID-19 pandemic, the provincial government amended the Employment Standards Act, 2000 (“ESA”) through Ontario Regulation 228/20, referred to as the Infectious Disease Emergency Leave (“O Reg. 228/20”).

The changes implemented by the O Reg. 228/20 not only provide new protection for employees on leave due to COVID-19, but also provide employers some flexibility in making changes to employees’ wages and hours.

These changes are enacted retroactively to March 1, 2020 and will expire six (6) weeks after the emergency declaration is lifted, the date of which is currently unknown.

Through O Reg. 228/20, full-time, part-time, casual, and assignment employees, in addition to students whose jobs were affected by COVID-19 issues, are deemed to be on leave for the duration of the emergency. This includes but is not limited to employees diagnosed with COVID-19, self-isolating due to COVID-19, and providing care to family members diagnosed with COVID-19. Employees can take leave without fear of punishment or even dismissal.

No Protection for Employers at Common Law

There are two types of employers—those who properly limit employee entitlements to the minimum standards under the ESA, and those who provide their employees with further entitlements, either deliberately by way of a valid contract, or often unintentionally through the common law.

The problem posed by this regulation is that it only protects the first category of employment relationship—those governed by valid employment agreements that successfully limit employee entitlements to ESA minimums.

Regulations define the implementation and enforcement of legislation–in this case, O Reg. 228/20 has been created under the ESA.

The problem is that not all contracts are limited to the minimum standards provided for under the ESA. Many employees do not have written, signed contracts. Depending on an employee’s employment agreement, an employee may have rights exceeding their minimum statutory entitlements—extending their entitlements to those under the common law. Under working arrangements without an enforceable written contract, employees may elect to enforce their common law rights instead of their rights under the ESA when it comes to layoffs.

By that same token, under the O Reg. 228/20, reducing employees’ hours or wages due to COVID-19, or absences beyond the temporary layoff provisions under the ESA, will not amount to constructive dismissal. Employees under these situations will instead be deemed to be on infectious disease emergency leave.

That being said, these employers are not necessarily protected from constructive dismissal claims where the common law governs.

While the constructive dismissal provision under the O Reg. 288/20 may give employers a sense of relief, this regulation in no way makes them immune to constructive dismissal claims. Employers may have less to worry about under the ESA now, but layoffs due to COVID-19 may still trigger a constructive dismissal under the common law.

Unionized Employers and Workers

Further, while the above provides protection for provincially regulated employees in a non-unionized workplace, it does not provide the same coverage for unionized employees. Employees in a union will still want to refer to their collective agreement in determining what rights they have and will want to speak to their union.

Unionized employers may have recourse should a union proceed with a grievance or allege a violation of a collective agreement. In that event, employers would be wise to speak to a lawyer, as collective agreements cover a wide range of employment issues.

Federally Regulated Industries

Finally, federally regulated employees covered under the Canada Labour Code will need to rely on federal legislation and cannot seek protection under the ESA. The 2020 Changes to the Canada Labour Code can be seen in our article here.

Contact Us

O Reg 228/20 and the Infection Disease Emergency Leave plan is leaving many people with questions. Whether you are an employer who wants to know more about how the O Reg 288/20 could affect your workplace, or an employee who has been placed on leave and want to know your rights, our team of employment and labour lawyers at Achkar Law can help.

Contact us by phone toll-free at 1-800-771-7882, or email us at [email protected], and we would be happy to assist you.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].

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