June 11, 2020
The Ontario government made some important revisions to the law governing workers and employers on June 5, 2020: If worker hours were reduced partly or entirely due to COVID-19, they will no longer be considered “laid-off” but will rather be deemed to be on “emergency leave”. Therefore, they will not be considered to be “constructively dismissed” (terminated) under the Employment Standards Act, 2000.
This change is retroactive to March 1, 2020. It will end 6 weeks after the province’s state of emergency ends.
What does this mean? Workers must receive benefits during this period. They no longer automatically have a claim for “constructive dismissal” under the ESA; however, they retain this same right under the common law.
For employers, the change provides flexibility going forward. It permits personnel decisions to be made based on the reality on the ground, rather than in accordance with the timeframe set out in the ESA.
However, workers cannot be expected to accept an uncertain future for prolonged periods of time. I therefore urge you as employers to reach out to your workers. Offer them hope. Inform them of your plans to restart your business. Coupled with government programs, consider midway options such as work sharing arrangements. Assure your workers that hygiene and health are an important priority.
For workers, the change creates uncertainty. I urge you to keep in touch with your employer (and fellow workers) to get a sense of whether or not you will be called back to work and, if so, when.
But consider not only whether or not your employer wishes to end the relationship - but whether you wish to do so as well. You have the right to consider other job prospects. And you have the right to consider a constructive dismissal claim under the common law.
For both employers and workers, also consider the wider context. The federal government is actively investigating changes to the CERB. The government is shifting its focus from minimizing the spread of infection to balancing that priority with a return to economic health. That means that the government will look for ways to incentivize employers and workers to return to work. This will likely include reducing CERB benefits and/or increasing eligibility requirements.
Stay tuned for further insights on our site. You can also review our updated COVID-19 Q & A section, and if you have any further questions about how the law may be changing and affecting your work, call us at 416-383-0550.