Notice to Reader: The ESA provides for three types of infectious disease emergency leaves relating to COVID-19. One leave is unpaid, another is deemed and unpaid (“deemed”) and the third is paid. This blog comments on deemed Infectious Disease Emergency Leave (IDEL) and not “paid” IDEL (the Ontario COVID-19 Worker Income Protection Benefit), which was recently extended to March 31, 2023, or (non-deemed) unpaid IDEL (which is also still in existence):
As well, this blog does not deal with the issue of whether an employee who was placed on a deemed IDEL prior to July 30, 2022 (usually because of a temporary layoff because of COVID-19) has been constructive dismissed at common law. That issue is addressed in my earlier IDEL blog.
WHAT’S THE LEGAL ISSUE?
Here is an increasingly common storyline playing out these days—and there are others that are similar, if not the same:
Let’s say you’re an Ontario non-unionized employee who was placed on a temporary layoff sometime during the pandemic.
Let’s give you a name: Jordan.
You, Jordan, later learned that the layoff was converted by the government to a deemed Infectious Disease Emergency Leave (IDEL). The government extended the IDEL end date multiple times since its creation in the spring of 2020.
All along, you’ve been waiting for your employer to recall you either before or when IDEL finally ends. You never resigned. You loved your job, the money was good, and you felt that the employer properly accommodated your disability.
And while you read something a while back that you might have been able to sue your employer for constructive dismissal under the common law, you didn’t know if that applied to you, and you had no interest in doing so since you wished to return to work.
At last, you recently learned on your own that IDEL was not extended beyond its last end date: July 30, 2022. Yet your employer never recalled you, nor have they advised you that your employment was terminated. There has just been silence. Your good friend, who reads lots of blawgs (aka legal blog posts), tells you “Jordan, you need to speak to a lawyer.” So, you listen to them and get legal advice (even though you’re not the kind of person who hires lawyers).
OK, let’s say you’re the Ontario employer in Jordan’s story.
You have a name: it’s Alex (after all, employers are people too).
You didn’t know that IDEL finally ended on July 30 (although your lawyer claims they warned you). After all, it was extended multiple times in the past, and you don’t consider the pandemic to be over yet.
In any event, you don’t have a job for Jordan – at least not currently. Jordan’s old job is now being handled by other employees. So, you just figured that “no news is good news”, and you hoped for the best. And besides, perhaps Jordan has another job where they are making more money.
So, you’re shocked when you receive a letter from Jordan’s lawyer demanding reinstatement and what appears to be a lot of money. It seems ridiculous to you. Haven’t employers been through enough over the last two+ years?!!? You immediately call your lawyer (you know, the one who warned you that this very thing could happen).
Does Jordan have a case – and for what? Does Alex have a defence?
Let’s start with the typical lawyer answer to the questions above, just to get it out of the way: It depends. It’s not what you want to read, but it’s the truth.
But to understand why “It depends.”, it’s important to take a quick look at the applicable law in Jordan and Alex’s situation:
- IDEL was a job-protected unpaid leave of absence under the Employment Standards Act, 2000 (ESA). Like other leaves under the ESA, once it is over, the employer was required to reinstate the employee to the position they most recently held, if it is still exists, or to a comparable one, if it does not. If an employer breaches its duty to reinstate, then, among other things, the Ministry of Labour could force them to reinstate the employee (and more). However, this right to reinstatement does not apply if the employer ended (terminated) the employee’s employment for solely for reasons unrelated to the leave (and since the leave was “deemed” to begin with, this seems like a low bar for employers to get over). So, the right to reinstatement under IDEL is not absolute. A claim for reinstatement can also raise practical issues that are beyond the scope of this blog.
- The employer could have placed the employee on a fresh temporary layoff, as of July 31, 2022, for a limited amount of time. However, an employer would have been wise to give written notice of the fresh layoff to the employee by July 30, 2022. As well, if there was no contractual right to place the employee on a temporary layoff in the first place, then doing so at the end of IDEL means that based on the current state of the law, the employee can sue the employer for damages for constructive dismissal. Only time will tell if the law will evolve and how. Finally, even a legal temporary layoff may, in the end, be simply delaying the inevitable: reinstatement or the eventual termination of the employee’s employment at the end of the maximum temporary layoff period (which isn’t going to be extended multiple times like IDEL was).
- Of course, the employer could have chosen to terminate the employment of the employee “overtly” before (or even after) IDEL ended – assuming it did not have an obligation under the ESA to reinstate them. However, if the employer did not terminate the employee’s employment or reinstate them or properly place them on a temporary layoff, the employer’s inaction may have resulted in the employee being constructively dismissed under both the ESA and the common law. Both an overt and a constructive dismissal mean that the employer will owe the employee ESA Termination Pay and (if applicable) Severance Pay, along with any additional pay in lieu of notice of termination under a contract and/or the common law, again if applicable. Once terminated though, the employee will have a common law, and possibly a contractual, obligation to cut their losses by making reasonable efforts to become re-employed (known as the “duty to mitigate”).Any amounts owing to the employee for termination under the common law, and possibly under a contract, will be reduced by income from new employment or self-employment, or as a result of a failure to mitigate (although the amounts owing under the ESA will not be reduced).
- Of course, there may be other laws applicable here, including, but not limited to, the Human Rights Code.
So, turning back to the fictional scenario involving Jordan and Alex, you can see why the answer to the questions posed is “it depends”.
Jordan might have a right to reinstatement, plus some back pay, or Jordan may have been constructively dismissed. It is possible that Jordan can now be placed on another temporary layoff, but we need more information. It is even possible that Jordan can claim they were discriminated against under the Human Rights Code, and so that is something Jordan’s lawyer would have explored when giving advice.
We also don’t know if Jordan has another job, so we can’t say if or how that may or may not affect the parties’ rights. Also, if Jordan’s employment was terminated, we don’t enough yet to determine what they are owed under the ESA, and if they are owed additional amounts on top of that. There are also numerous other questions that arise out of the questions of who is, or is not, entitled to what. Also: every case is different, and each turns on its own facts.
So, what’s a Jordan or Alex (or someone in a similar situation) to do?
WHAT TO DO
- Obtain a legal opinion directly from your own experienced employment lawyer before drawing any conclusions about what the end of IDEL means, and before contacting your employer (in the case of an employee) or responding to your employee’s (or their lawyer’s) inquiries or demands about the end of IDEL (in the case of an employer).
- Given everything described above, when working with your lawyer, be prepared for uncertainty and be flexible in your thinking and your expectations.
- Since you’ve read about how contracts can impact the parties’ rights and entitlements here, employers need to review their employment contracts and policies with their lawyer to see how to best protect themselves in similar situations in the future.
- At the same time, employees need to have new employment contracts or job offers (or any other document presented by a new or existing employer) carefully reviewed by counsel before signing them to understand what they may be giving up in the future–and if anything can be done about it in the present.
- When your lawyer warns you about certain events and the potential consequences of inaction, be sure to pick up the phone right away to get answers and diarize your calendar appropriately. It could save you a lot of grief down the road.
If you are an employee or employer, I can help you with any (post) COVID-19 related or other workplace issues, along with employment contracts and policies. I have more than 25 years’ experience as an employment lawyer with satisfied, repeat clients.
If you are a lawyer or paralegal looking to hire a mediator or arbitrator for your employment law dispute, including those (post) COVID-related, I have been a mediator for over a decade and now practice as an arbitrator. I conduct mediations and arbitrations via videoconference, in-person, or in a hybrid format.
THIS BLOG IS FOR EDUCATIONAL PURPOSES AND IS NOT INTENDED AS, AND DOES NOT CONSITTUTE LEGAL ADVICE OR A LEGAL OPINION.