In May 2020, the Government of Ontario made O. Reg. 228/20 under the Employment Standards Act, 2000 (ESA), which converted temporary layoffs because of COVID-19 to a job-protected Infectious Disease Emergency Leave (deemed IDE Leave). As a result, non-unionized employees could not claim constructive dismissal under the ESA on the basis of eliminated or reduced work hours related to COVID-19.

Under the Regulation, the deemed IDE Leave was to end six weeks after the end of Ontario’s declared State of Emergency. Given that Ontario’s State of Emergency ended on July 24, 2020, deemed IDE Leave was to end on September 4, 2020 — or so it was believed.

However, in a press release issued late in the afternoon on September 3, 2020, the Government of Ontario announced that O. Reg. 228/20 has been amended such that employees experiencing temporary reductions or elimination of work hours will continue to be considered on deemed IDE Leave until January 2, 2021. This means that employers can continue temporary layoffs that are because of COVID-19 without risk of facing constructive dismissal claims under the ESA, currently at least until the New Year. Short of further legislation, effective January 3, 2021, the deemed IDE Leave will come to an end and temporary layoff rules will apply once again, but the temporary layoff clock will reset.

We will update this blog as more information is released about the amendment.