Ontario’s deemed infectious disease emergency leave (IDEL) has been further extended, just a week before it was expected to end on September 25, 2021. On September 16, 2021, the Government of Ontario’s guidelines¹ on the leave were updated to confirm that the leave, along with related temporary rules introduced in response to the COVID-19 pandemic, will now continue to be in effect until January 1, 2022. The Ontario Government has not yet formally announced the extension nor has Ontario Regulation 228/20² been amended, but we have verified the extension of the IDEL with the Ministry of Labour’s Employment Standards Information Centre.

This is the fourth extension of the deemed IDEL which was first introduced in May 2020 to create a job-protected leave for non-unionized employees whose hours of work are temporarily reduced or eliminated by their employer as a result of the COVID-19 pandemic during the “COVID-19 period.” During the COVID-19 period, employees are not considered to be on a temporary layoff under the Ontario Employment Standards Act, 2000 (the “ESA”) and are not considered to be constructively dismissed under the ESA.

The extension offers employers flexibility with managing their Ontario workforce in the continuously uncertain COVID-19 landscape. Subject to a further extension by the Government of Ontario, the ESA’s temporary layoff and constructive dismissal provisions are now scheduled to come back into effect on January 2, 2022. Practically, this means that for any employers that cannot return their employees to work by that date, the temporary layoff “clock” will reset and start effective January 2, 2022.

What does this mean for Ontario employers?

Employers should be mindful of the fact that the deemed IDEL is a statutory leave of absence under the ESA and has the same protections afforded to other leaves. Notably, this means that employers have an obligation under the ESA to reinstate an employee to his or her most recently held job (or a comparable position if it no longer exists) when the deemed IDEL ends.

For employers who may have been planning to terminate the employment of employees who are currently on IDEL due to the leave ending on September 25, 2020, the decision of whether to proceed can now be deferred without risk of automatic termination. We recommend that employers provide a letter to any employees currently on the deemed IDEL to advise as to the extension of the IDEL and their current status. Employers should also consider their current and future staffing strategies, so they are prepared when the reinstatement obligation comes into effect in January 2022.

We continue to monitor this and other developments related to the COVID-19 pandemic. For more information on the deemed IDEL and its implications for your workplace, please contact Larysa Workewych, Meaghen Russell, or any member of our Dentons Employment and Labour group.

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¹ See https://www.ontario.ca/document/your-guide-employment-standards-act-0/infectious-disease-emergency-leave and https://www.ontario.ca/document/your-guide-employment-standards-act-0/covid-19-temporary-changes-esa-rules.
² https://www.ontario.ca/laws/regulation/200228