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It has been reported that Infectious Disease Emergency Leave (IDEL) is coming to an end at the end of this month. That is partly true. Deemed IDEL is indeed ending, but other aspects of IDEL continue. In this article, we explain what is staying and what is going in the oasis of IDEL (pun intended).
A Brief History of IDEL
On March 19, 2020, the government of Ontario passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, introducing IDEL. In previous articles, we detailed the origin, evolution and extension of IDEL. The following is a quick summary.
a) Origin
Bill 186 eliminated a prior leave related to public emergencies and replaced it with two new leaves under the heading “Emergency Leave: Declared Emergencies and Infectious Disease Emergencies”.
The first leave relates to declared emergencies (DEL) – which could include an emergency declared because of an infectious disease but could also be any other type of declared emergency. Under DEL, employees are entitled to a leave of absence if they cannot work because of an order that applies to them or if they are providing care or assistance to a family member subject to an order.
The second leave is related to a “designated infectious disease” (IDEL) and provides a leave of absence to employees for any of the following reasons:
- The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
- The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
- The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
- The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
- The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
- The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
- Such other reasons as may be prescribed.
COVID-19 was declared a designated infectious disease under Regulation 66/20 along with other novel coronavirus diseases including Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS).
Employers are not permitted to ask for a medical note if employees choose to take DEL or IDEL because of an infectious disease. However, the employer may require employees who take the leave to provide other evidence that is reasonable in the circumstances.
There is a long list of family members that an employee is entitled to take IDEL to assist (see our prior article for details)
b) Evolution Part 1 – Deemed IDEL
On May 29, 2020, the government published Regulation 228/20: Infectious Disease Emergency Leave. The Regulation clarified that during the “COVID-19 period”, employees who experienced a temporary (1) reduction of work hours (2) elimination of work hours; (3) reduction in wages, or (4) a layoff, for reasons related to COVID-19 were deemed to be on a job protected IDEL unless the employer permanently discontinued all of their business. Deemed IDEL, as introduced, was time limited.
Deemed IDEL has been raised as a defence in a number of constructive dismissal law suits, but not without controversy. To date, the case law is divided. See our prior article on this topic. The Taylor v. Hanley Hospitality Inc. case referred to in the prior article was appealed but the Court of Appeal did not rule on the key issue – whether constructive dismissal claims are prevented by deemed IDEL.
c) Evolution Part 2 – 3 Paid COVID Sick Days
On April 29, 2021, the Ontario COVID-19 Worker Income Benefit came into effect amending the ESA (see our previous article). The benefit requires employers to provide employees with up to three (3) paid days of IDEL for reasons related to COVID-19. Employers who did not have existing sick leave plans in place when the amendment was enacted can seek reimbursement for the amounts paid from the Workplace Safety and Insurance Board (WSIB). As with deemed IDEL, when the paid sick day benefit was added, it was time limited.
d) Extensions
Both deemed IDEL and the three (3) paid COVID-19 sick days were extended beyond their original expiry. Most recently the “COVID-19 period”, which determines how long deemed IDEL continues, was extended to July 30, 2022.
In December 2021, the amendment providing for the benefit was extended to July 31, 2022. On July 21, 2022, the Ontario Government published Regulation 464/22 extending the three (3) paid sick days once again until March 31, 2023.
Where are we now?
- DEL no longer applies as there is no longer a state of emergency in Ontario.
- IDEL continues to apply. Employees are entitled to a leave of absence if they meet the criteria set out above. This includes, but is not limited to:
- Being sick with COVID-19
- Being required to self-isolate because of COVID-19
- Being required to stay home by the employer under a screening protocol
- Staying home to look after family members with COVID-19
- Attending an appointment to be vaccinated
- Employees are entitled to three (3) COVID-19 paid sick days if they take time off work to be vaccinated, have side effects from vaccination, or are sick with COVID-19. Reimbursement can be sought from the WSIB if the employer qualifies.
Effective July 31, 2022:
- Employers who laid off employees or reduced their hours and/or pay due to COVID-19 will no longer be able to rely on deemed IDEL.
- Employees will be considered laid off for the purposes of the ESA if they have not returned to work or if there is no work for them at any point going forward because of COVID-19. Termination pay and severance pay, if applicable, will be owed to any employee whose layoff exceeds the temporary layoff period.
- Employees whose wages were reduced because of COVID-19 will be able to claim constructive dismissal.
- Laid off employees may also commence constructive dismissal claims if their employment contract does not impliedly or expressly permit their employer to lay them off.