COVID-19 Employee Rights (Ontario)

employment laws and coronavirus

UPDATED AS OF JUNE 9, 2020

Learn about employee rights and the 2019 Novel Coronavirus (COVID-19) in Ontario. Has your employment been affected by coronavirus? Do you have to go to work because of coronavirus? Here is everything you need to know about employment rights and coronavirus.

Various levels of governments have proposed and now enacted sweeping changes to legislation to try and make sure Ontario workers do not lose their jobs and are financially taken care of while they are temporarily not working. This article will be updated as new laws become proposed and enacted.

The Rights of Employees and Coronavirus

The Ontario Government ordered the mandatory closure of all non-essential workplaces effective as of Tuesday, March 24th at 11:59 p.m. The Ontario government refined the list of “essential workplaces on April 3.

Employees affected by the Order are entitled to take a Declared Emergency Leave under the Employment Standards Act, 2000 (ESA). Declared Emergency Leave is an unpaid, job-protected leave of absence.

Employees on Declared Emergency Leave are entitled to their normal benefits so long as the employee continues to pay their portion of the premiums (where applicable).

Employees who go on Declared Emergency Leave because of orders for mandatory closure of all non-essential workplaces should apply for EI regular benefits immediately.

Read all about the Ontario Closure of all Non-Essential Workplaces. A full list of Ontario businesses that are ordered to close is here.

Employment Standards Act Sick Leave and Coronavirus

Prior to the COVID-19 pandemic, in Ontario, employees were permitted to take only three unpaid sick days per year as per the Employment Standards Act.

New Kind of Leave in Ontario

However, as of March 16, 2020, the Ontario government has proposed that employees with coronavirus illness, symptoms or quarantine can take a new kind of leave called “Infectious Disease Emergency Leave“. Employees with coronavirus illness, symptoms or quarantine may take as many job-protected Infectious Disease Emergency Leave days as they require. To be clear, with these proposed changes, an employee cannot be terminated for taking a long leave due to coronavirus illness, symptoms or quarantine. If an employee is terminated for taking a leave related to coronavirus illness, symptoms or quarantine, they can be reinstated.

Also as of March 16, 2020, the Ontario government proposed that an employer is not permitted to ask an employee for a doctor’s note evidencing that the employee is sick with coronavirus or under an order to quarantine.

We expected the Ontario government to act quickly to amend the Employment Standards Act to permit sick or quarantined people more than three unpaid sick days per year as a result of the worsening coronavirus pandemic and get rid of the right of employers to ask for doctor’s notes, and they did.

Infectious Disease Emergency Leave

As anticipated, the Ford government acted quickly to make the above-noted proposals law. On March 19, 2020 the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 came into effect, which added a new kind of leave: Infectious Disease Emergency Leave.

Infectious Disease Emergency Leave provides for a new unpaid, job-protected emergency leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or daycare closures or to care for other relatives.

Individuals affected by COVID-19 coronavirus should therefore now take an Infectious Disease Emergency Leave from work, not a “Sick Leave”.

Infectious Disease Emergency Leave provides job protection for employees unable to work for the following reasons:

  • The employee is under medical investigation, supervision or treatment for COVID-19.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  • The employee is in isolation or quarantine in accordance with public health information or direction.
  • The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace.
  • The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
  • The employee is prevented from returning to Ontario because of travel restrictions.

An employee can take Infectious Disease Emergency Leave to care for the following individuals:

  • The employee’s spouse.
  • A parent, step-parent or foster parent of the employee or the employee’s spouse.
  • A child, step-child or foster child of the employee or the employee’s spouse.
  • A child who is under the legal guardianship of the employee or the employee’s spouse.  
  • A brother, step-brother, sister or step-sister of the employee.
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.  
  • A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
  • A son-in-law or daughter-in-law of the employee or the employee’s spouse.
  • An uncle or aunt of the employee or the employee’s spouse.
  • A nephew or niece of the employee or the employee’s spouse.
  • The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
  • A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
  • Any individual prescribed as a family member for the purposes of this section.

The law also makes it clear that an employee will not be required to provide a medical note if they need to take the leave.

These March 19, 2020 measures are retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario. They will remain in place until COVID-19 is defeated.

Update, June 2, 2020: In a surprise regulation issued on May 29, 2020, retroactive to March 1, 2020 and until Ontario’s emergency order is no longer in place, all covid related temporary lay-offs will be deemed an infectious disease emergency leave. O. Reg. 228/20 appears to attempt to make life more predictable for employers. It prevents employees from complaining that they have been “constructively dismissed” to the Ministry of Labour. The new regulation also declares that workers who were laid off shall not be deemed to have been laid off, but instead are on “infectious diseases emergency leave.” The way it does this however, is quite confusing, as for instance employees who were told they were “laid off” will now be counted as being on leave, even though they did not request it. Call us for more on this regulation.

Who does Infectious Disease Emergency Leave apply to?

Most employees and employers in Ontario are covered by the provisions in this legislation, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers.

It does not apply to people in sectors that fall under federal jurisdiction, including employees working for banks, airports, inter-provincial and international rail, and federal crown corporations.

Infectious Disease Emergency Leave and Terminations

It is important to keep in mind that the Employment Standards Act only prevents an employer from terminating an employee for taking sick leave or Infectious Disease Emergency Leave. In Ontario, an employer can terminate an employee without cause for any reason unless it is discriminatory so long as it provides “notice“. For example, an employer is still free to terminate employees at a workplace affected by COVID-19 for business reasons.

What happens in case an employee fires someone because of coronavirus illness or quarantine?

These are novel circumstances, and things are evolving quickly, but employers may be further prohibited from terminating employees or disciplining them for being sick in Ontario due to coronavirus illness, symptoms or quarantine because of other legislation. As discussed below, employers may not be able to terminate employees who are sick or quarantined with coronavirus because of protections built into the Human Rights Code and the Occupational Health and Safety Act.

Human Rights Code and Coronavirus

Discriminatory action against any persons because of the coronavirus, perceived or otherwise, may be prohibited by the Ontario Human Rights Code.

The Human Rights Code protects against discrimination based on 17 grounds, whether perceived or otherwise, including “disability”.

We would put forth that coronavirus illness or quarantine is serious enough that it is a “disability” as defined by the Human Rights Code. Thus, because of the Human Rights Code, employers are extremely likely to be forbidden from terminating or disciplining someone because of their coronavirus sickness or quarantine even where the employee was away from work for a long period. Under the Human Rights Code, an employer must accommodate disabled employees up to the point of undue hardship.

Accommodation does not mean pay. Rather, accommodation, in these circumstances is an unpaid leave, or paid work from home where appropriate and/or other novel changes to the employment relationship to accommodate sick or quarantined workers.

The Ontario Human Rights Commission, which is an arm’s length governmental body tasked with preventing discrimination through public policy, but is not a decision-maker, agreed with our position on March 13, 2020, stating that the Human Rights Code ground of “disability” is in fact engaged in relation to COVID-19 because it carries “significant social stigma”.

However, no case has yet decided whether coronavirus is a disability, and individuals should seek legal advice from a lawyer for their specific circumstances. Likewise, in their March 13, 2020 statement, the Ontario Human Rights Commission stated that its policy statement was not legal advice, rather it: “encourages individuals and organizations to take universal precautions based on the most current advice from Public Health officials.”

In addition, accommodation means permitting parents to miss work to take care of children who are not in school and need supervision because of coronavirus. These caregiving responsibilities which relate to the Human Rights Code ground of “family status” could include other situations where another family member is ill or in self-isolation.

Health and Safety and Coronavirus

Under the Occupational Health and Safety Act, all workers have a duty to take every precaution reasonable in the circumstances for their protection and the protection of other workers. To that end, in certain scenarios, an employee cannot be terminated for exercising his or her obligation to reasonably prevent workplace illness by refusing to come into work. Accordingly, where it was reasonable to do so, the Occupational Health and Safety Act may prevent an employee’s termination for failing to come into work because of coronavirus. In the same vein, employees can actually be liable under the Ontario Occupational Health and Safety Act if they knowingly and with willful disregard come into the workplace and spread the coronavirus.

Likewise, under the Ontario Occupational Health and Safety Act, an employer is responsible for ensuring the health and safety of their workers. Specifically, under the Ontario Occupational Health and Safety Act, employers must take “every precaution reasonable” in the circumstances for the protection of workers. To that end, each workplace will be different, but where there is a coronavirus outbreak in the office or the same building, for example, it may well be that forcing employees to work from home was the most reasonable precaution to take to protect worker safety. In this regard, yes, employers may have a duty to require employees to stay away from the office.

To be clear, in order to avoid liability under the Occupational Health and Safety Act, employers may be required to order employees to work from home. For example, in case an employer has specific knowledge that an employee has coronavirus or has been exposed to the coronavirus, that employer may have a requirement to protect the health and safety of others in the workplace by forcing the ill employee to stay away from work.

Declared Emergency Leave

On March 17, 2020, the Ontario government declared a state of emergency.

The following establishments have been ordered to be closed:

  • facilities providing indoor recreational programs
  • public libraries
  • private schools as defined in the Education Act
  • licensed child care centres
  • bars and restaurants, except to the extent that such facilities provide takeout food and delivery
  • theatres including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies
  • concert venues.

The state of emergency order will be in place until March 31, 2020, at which point it will be reassessed.

Employees of establishments closed by the Government’s state of emergency order should be entitled to take an unpaid job-protected Declared Emergency Leave as per section 50.1 of the Employment Standards Act, as explained in my colleague Andrew Monkhouse’s article on the topic.

Can my employer force me to go on leave because of coronavirus?

An employer has a duty to take every precaution reasonable to prevent illness in the workplace under the Occupational Health and Safety Act. Thus, if an employee is exhibiting Coronavirus symptoms, or if an employee returned from somewhere with a high-risk coronavirus outbreak, an employer can ask an employee to stay home from work and go on Infectious Disease Emergency Leave. However, the decision to do so does must be reasonable, and it cannot be discriminatory. For example, an employer cannot force an employee to stay home because of his or her race or ethnicity.

The Ontario Human Rights Commission policy position is that negative treatment of employees who have or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Human Rights Code.

Employers do not need to pay employees ordered to self-quarantine from work because such a leave would be considered a sick leave or Infectious Disease Emergency Leave, and employers do not need to pay employees on sick leave or Infectious Disease Emergency Leave unless they have a contract that says they do.

Update, June 2, 2020: In a surprise regulation issued on May 29, 2020, retroactive to March 1, 2020 and until Ontario’s emergency order is no longer in place, all covid related temporary lay-offs will be deemed an infectious disease emergency leave. O. Reg. 228/20 appears to attempt to make life more predictable for employers. It prevents employees from complaining that they have been “constructively dismissed” to the Ministry of Labour. The new regulation also declares that workers who were laid off shall not be deemed to have been laid off, but instead are on “infectious diseases emergency leave.” The way it does this however, is quite confusing, as for instance employees who were told they were “laid off” will now be counted as being on leave, even though they did not request it. Call us for more on this regulation.

What happens if an employee is afraid to come to work because of coronavirus? 

Employees in Ontario have a right to refuse to work if they genuinely believe that conditions are unsafe for them or their coworkers.

The Ontario Occupational Health and Safety Act has a work refusal procedure that must be followed by employers. Where attending at the workplace is “likely to endanger” the spread of coronavirus, then the employee will be permitted to stay away from the workplace until the situation is resolved without fear of termination of discipline.

On the other hand, if an employee refuses to go to work in the absence a genuine coronavirus illness or quarantine, theoretically, this could be considered “willful neglect” and they could be terminated for cause.

Can I be fired because of coronavirus?

The Employment Standards Act was proposed to be changed on March 16, 2020 to job protect workers on coronavirus related leave for however long it takes for this pandemic to end. An employee terminated because of coronavirus related sick leave or Infectious Disease Emergency Leave would be reinstated.

Furthermore, under the Human Rights Code, illness or quarantine could likely be a “disability” and employers are forbidden from terminating employees because of disability. An employer must accommodate a “disabled” employee up to the point of “undue hardship”. As part of its duty to accommodate a disabled employee, employers must permit disabled employees to stay home or work from home in appropriate circumstances. As part of this duty, an employer cannot terminate or discipline or treat any different an employee who returns from coronavirus sick leave or quarantine.  

Nevertheless, employers are still permitted to terminate employees without cause for non-discriminatory reasons, or reasons not related to sick leave, such as business closures or business slow-down. Alternatively, employers are still permitted to lay-off employees without cause for non-discriminatory reasons.

Read below for EI and severance entitlements for individuals terminated during the COVID-19 pandemic.

Can my employer ask me if I have coronavirus or where I travelled?

Yes, in these circumstances, a global pandemic, under the duty of the employer to take all reasonable precautions to maintain a safe work environment, an employer would be permitted to ask an employee if he or she is sick with coronavirus or if he or she travelled somewhere with a coronavirus outbreak. Read below for more on employee privacy and coronavirus.

Employee Privacy and Coronavirus

Employers have a right to collect, use and disclose private information in order to take reasonable precautions to maintain a safe workplace. Nevertheless, the right to collect, use and disclose private information in this pandemic is not absolute. Employers must take reasonable precautions not to disclose specific and sensitive details regarding an employee’s diagnosis, sick leave or work from home plans unless it is reasonably necessary to do so.

Employers are strongly urged to consider what exact information they need from their workers in order to promote a safe and healthy workplace, and how they can achieve a safe and healthy workplace in a minimally intrusive way as possible.

Accordingly, in these circumstances, employers may ask for and collect private information from employees like travel history, symptoms, diagnoses, risk level and treatment, but they must do so in a manner that is not overly insensitive and intrusive.

Government, policymakers and experts have said that requiring COVID-19 information to be disclosed by employees is appropriate and in fact, may be necessary during these circumstances.

Employers will have a duty to notify their employees that an employee or multiple employees have tested positive for COVID-19. However, employers must take every reasonable precaution not to disclose information that could identify a person and their specific symptoms and diagnosis unless it is reasonably necessary in the circumstances. Generally, all that needs to be said is that an employee tested positive for coronavirus, where he or she worked and came into contact, and that necessary precautions are being taken to stop the spread in the workplace. However, workers that obviously came into contact with a high-risk person should be notified of more specific details.

Employers are encouraged to take advice from public health officials, all levels of government and other experts to determine their contingency, workplace health and privacy obligations in light of COVID-19.

Summary: Rights of Employees and Coronavirus

The Ontario Employment Standards Act, combined with the Human Rights Code and Occupational Health and Safety Act provide protections to employees to stay home from work for longer periods because of coronavirus without fear of termination or discipline. The Employment Standards Act will be changed to allow indefinite sick leave related to COVID-19 (update it was changed on March 19, 2020 to permit this), and the Human Rights Code and Occupational Health and Safety Act May extend job protections for however long an employee is sick and for however long coronavirus is likely to endanger workers at a specific workplace.

Still, nothing in this article has been tested by the courts, so it is opinion, not fact. Consult with an employment lawyer to be sure.

employment rights and coronavirus
Employees and Coronavirus

Does an employer have to pay an employee on infectious disease emergency leave or quarantine?

No, employers do not have to pay employees on coronavirus sick leave, infectious disease emergency leave or quarantine. Some employers, however, have contracts with their employees that promise to pay them in case of sickness for a certain amount of time. In addition, employees can use vacation days while they are sick or on quarantine, continuing to get paid that way.

Nevertheless, employees can receive income from EI sickness benefits if they are eligible and/or short term disability insurance if they have such a policy.

March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here.

Employees on an unpaid Leave should try and use vacation days first. Vacation pay is worth 100% of normal salary, but EI is only worth 55%.

However, employees who are not sick who are asked to work from home in self-quarantine must be paid like usual.

In addition, employers can temporarily layoff employees without having to pay them their usual pay or severance for 13 weeks in a 20 week period before triggering a termination. However, as discussed below, unless an employee’s contract contemplates a layoff, a temporary stoppage of work may be a constructive dismissal, resulting in, essentially, a termination without cause. Nevertheless, these are new and novel circumstances, and individuals should call a lawyer before claiming constructive dismissal. There is a chance that a court would not consider a legitimate and by-the-book temporary layoff during this pandemic a constructive dismissal. However, this is just my opinion, not a fact.

Employment Insurance Options for COVID-19

SituationEI Type
Does eligible Employee have COVID-19?EI Sickness Benefits
Does ineligible employee have COVID-19?EI Emergency Care Benefits
Is eligible Employee in quarantine?EI Sickness benefits
Is ineligible Employee in quarantine?EI Emergency Care Benefits
Is eligible Employee taking care of sick loved ones?EI Regular Benefits
Is ineligible Employee taking care of sick loved ones?EI Emergency Care Benefits
Did eligible Employee get a layoff or termination?EI Regular Benefits
Did ineligible Employee get a layoff or termination?EI Emergency Support Benefit

Employment Insurance Sickness Benefits and Coronavirus

On March 11, 2020, Prime Minister Justin Trudeau announced $1.1-billion in new measures in response to COVID-19, improving Employment Insurance sickness benefits for ill and quarantined workers. Specifically, the federal government is waiving the mandatory one-week waiting period to access EI benefits.

“Let me be clear: No one should have to worry about their job if they have to be quarantined. No employer should feel like they have to lay off a worker because of the virus. We can support you. And we will. Today’s announcement is significant, but we’re already preparing to do more if need be.”

Prime Minister Trudeau

March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here.

Employment Insurance sickness benefits provide employees with up to 15 weeks of income if they cannot work because of coronavirus illness or quarantine. To be clear, yes, employees who stay at home in-self isolation or forced-isolation because of coronavirus but who are not sick are eligible for EI sickness benefits.

Employees are eligible for EI sickness benefits if they have paid EI premiums and have worked 600 hours in the past 52 weeks.  

Employment insurance sickness benefits provide employees with 55% of their earnings up to a maximum of $573 a week.

In applying for EI sickness benefits, employees are not required to get a medical certificate from a doctor to show that they are unable to work for “medical reasons”, which is something the federal government changed in its March 11, 2020 announcement.

The Federal government also announced these changed to the EI sickness benefits in light of coronavirus:

  • Priority EI application processing for EI sickness claims for clients under quarantine
  • People who cannot complete their claim for EI sickness benefits due to quarantine may apply later and have their EI claim backdated to cover the period of delay

Coronavirus: How long does it take to get EI sickness benefits?

Previously, employees had a one week waiting “deductible” period to get EI sickness benefits. However, because of the coronavirus pandemic, on March 11, 2020, the federal government eliminated the one week waiting period.

The first cheque from EI should arrive around 21 days after an employee signs up. Previously, it used to take 28 days to get the first check.

Employees may sign up for EI sickness benefits because of coronavirus here.

EI Regular Benefits

Employees laid off or terminated as a result of coronavirus COVID-19 can also apply for EI regular benefits just like normal. Click here to learn all about EI.

March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here.

EI Emergency Care Benefit

Newly announced On March 18, 2020, by the federal government was the creation of an Emergency Care Benefit. However, the EI Emergency Care Benefit was scrapped almost as soon as it was announced.

March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here. In addition, the CERB replaces the proposed EI Emergency Care Benefit

EI Emergency Support Benefit

Also newly announced on March 18, 2020, by the federal government was the creation of an Emergency Support Benefit. However, the EI Emergency Care Benefit was scrapped almost as soon as it was announced.

March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here. In addition, the CERB replaces the proposed EI Emergency Support Benefit.

Short Term Disability Insurance and Coronavirus

Sick or quarantined employees fortunate to have short term disability insurance provided by their employer should apply for their short term disability insurance income quickly.  

Coronavirus or coronavirus symptoms or quarantine is a bonafide reason to receive short term disability insurance – employees with the aforementioned circumstances will be approved.

Some short term disability insurance providers, in recognition of the increasing pressure on our clinics and hospitals due to the worsening pandemic, will not, at the outset, require a doctor’s note as part of an employees short term disability claim if their absence from work is due to coronavirus symptoms, a clinical diagnosis of the virus, or quarantine order.

Employees should contact their HR for their short term disability claims submissions form, or, failing that, contact the insurer directly as soon as they become ill or quarantined.

Coronavirus and Severance

If there is an economic downturn, or office closures because of coronavirus, employees affected by mass terminations will be entitled to severance just like normal.

Read here to calculate how much severance an employee may be entitled to.

Note that however, in past recessions, some judges (not all) awarded slightly more or slightly less severance to employees because of the economic conditions. This former theory relies on the core purpose of severance which is to support an employee in their transition to new employment. The latter theory of case law is based on the fact that in economic downturns, employers cannot afford their employees, and thus they likely cannot afford to pay normal severance that would be appropriate in an economic boom period.

In addition, terminated employees would be entitled to EI regular benefits, which is much longer than EI sickness benefits. Indeed, there is a good chance EI regular benefits will be extended like what happened in the last economic downturn in Canada in 2008/2009 (the federal government extended EI entitlement by five weeks and increased the maximum allowable EI entitlement from 45 to 50 weeks).

Furthermore, when termination of employment is permanent, employees may expect to receive other compensation, such as accrued vacation pay, statutory holiday pay, commissions, sick leave credits and bonuses.

Coronavirus and Layoffs

The Employment Standards Act has a layoff mechanism for permitting a temporary stoppage of work up to 13 weeks in a 20 week period.

A layoff allows an employer to temporarily stop paying a worker who is temporarily not working without triggering a termination which would result in the employer’s duty to pay severance and other termination payments.

Laid-off employees are entitled to EI regular benefits. Employees should always apply for EI benefits as soon as they are laid off. Employees can apply for EI regular benefits even if they have not yet received their Record of Employment (ROE).

March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. Read more here.

Note, however, that in most employment contracts, layoffs are not permitted, and any pay less than a usual work week, even just once, could be considered a “constructive dismissal“. In other words, absent a clause in the employment contract permitting a layoff, an employee may be able to treat a temporary layoff as a termination without cause, and seek termination pay in lieu of notice immediately. However, there is a risk that a court would not consider a legitimate and economically required layoff during this pandemic a constructive dismissal. COVID-19 presents unique circumstances.

Update May 30, 2020: The Ontario government’s May 29, 2020 regulation under the Infectious Disease Emergency Leave provision in the Employment Standards Act says a temporary reduction or temporary elimination of an employee’s hours or wages for COVID-19 reasons are not considered a constructive dismissal per the Employment Standards Act. However, as Professor Doorey of Osgoode Hall pointed out very quickly after the regulation was posted, this regulation would likely not apply to “common law” constructive dismissal. In addition, Andrew Monkhouse, the founder of my firm, Monkhouse Law, has the same opinion in that this new regulation does not bar common law constructive dismissal. Hence, employees deemed to have taken this Infectious Disease Emergency Leave cannot make a constructive dismissal complaint to the Ministry of Labour, but they still, likely, could claim common law constructive dismissal through the courts. None of this information has been tested, all we have now are just theories. Call us for more info on this regulation.

In addition, if an employer recalls a laid-off employee who claimed or was going to claim constructive dismissal, then an employee may only be entitled to common law damages for the time the employee was laid off, not the entire reasonable notice period. Once an employer recalls a laid-off employee, the employee’s damages are “mitigated”. In short, if there is just a temporary work stoppage without pay because of coronavirus, then an employee may only be entitled to damages (i.e. severance) for this short period if they are recalled after the COVID-19 situation improves.

Employers may be able to avoid layoffs by taking advantage of new measures announced on March 27, 2020 to help employers meet payroll. Employees are encouraged to bring these new measures to the attention of their employer.

Update, June 2, 2020: Update, June 2, 2020: In a surprise regulation issued on May 29, 2020, retroactive to March 1, 2020 and until Ontario’s emergency order is no longer in place, all covid related temporary lay-offs will be deemed an infectious disease emergency leave. O. Reg. 228/20 appears to attempt to make life more predictable for employers. It prevents employees from complaining that they have been “constructively dismissed” to the Ministry of Labour. The new regulation also declares that workers who were laid off shall not be deemed to have been laid off, but instead are on “infectious diseases emergency leave.” The way it does this however, is quite confusing, as for instance employees who were told they were “laid off” will now be counted as being on leave, even though they did not request it. Call us for more on this regulation.

Dutton Employment Law is an employment law group at Monkhouse Law in Toronto advising employees and employers on all employment law matters and in all industries. Contact us for a free phone consultation.

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