IDEL COVID-19 Period Extended to January 1, 2022

IDEL COVID-19 Period Extended to January 1, 2022

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The COVID-19 period for Ontario’s Infectious Disease Emergency Leave (IDEL) has once again been extended, this time to January 1, 2022. The COVID-19 period for this leave which, at its inauguration was set to end on September 4, 2020, has been extended multiple times – first to January 2, 2021, then to July 3, 2021, then again to September 25, 2021, and now into the new year. 

To Whom Does this Leave Apply?

This IDEL applies to employees who were laid off or had their hours temporarily reduced from March 1, 2020 to January 1, 2022. Employees on this deemed IDEL are exempted, under a provincial regulation that amended certain segments of the Employment Standards Act, 2000 (“ESA”), from being deemed to have been terminated. These employees are not owed ESA notice or severance pay. 

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Failure to Mitigate and Reduction of the Notice Period

Employees who have been wrongfully dismissed from their employment have a legal duty to mitigate. In other words, these employees must look for new employment if they wish to seek a termination payment from their former employers. Regardless of whether an employee successfully secures new employment prior to the end of their notice period, the court will still look to see that the employee took reasonable steps to find alternative comparable employment. If the court is not satisfied that the employee has made proper efforts to do so, it may reduce or deny the termination pay the former employer would otherwise be ordered to pay to the employee. A recent decision, Lake v. La Presse (2018) Inc., 2021 ONSC 3506, underlines the repercussions an employee could face if they fail to take such reasonable steps to mitigate their damages.

The Case of Lake v. La Presse (2018) Inc.

In this 2021 Ontario Superior Court case, the Court reduced a former employee’s common law/reasonable notice period from eight to six months due to the employee’s failure to mitigate their damages. 

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The Start of Mandatory Vaccinations in Canada?

employer mandatory vaccine policies

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Last week, the federal government announced that it will be making vaccinations mandatory for federal employees and also for those working in some federally regulated industries related to travel. You can read the news release here.

The government intends to require vaccinations for federal employees by the end of September. It projects that vaccinations will be required in the federally regulated transportation sector (airlines, rail, cruise ships) by the end of October. The requirement will also apply to travellers.

The Public Service Alliance of Canada — which is the union representing the majority of impacted workers —  is apparently on board with this move.

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Reasonable Notice: An Opportunity Not A Guarantee

How much notice should you give your employee on termination? A recent decision of the Ontario Superior Court in Herreros v Glencore Canada reiterates that when calculating the period of reasonable notice owed to a wrongfully dismissed employee, it is the circumstances at the time of termination that matter. 

The rule comes from a decision of the Ontario Court of Appeal in Holland v Hostopia.com. It states: “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”. We blogged about the rule here and here in our updates about employment litigation during the pandemic. 

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Another Ruling on the IDEL and the Employee’s Right to Pursue Common Law Constructive Dismissal

The Ontario Superior Court has ruled once again on the right of an employee to assert a constructive dismissal in light of the O. Reg. 228/20: Infectious Disease Emergency Leave (“the Regulation”) under the Employment Standards Act, 2000 (ESA). In the latest decision, the court ruled that the Regulation does not preclude an employee from asserting a common law constructive dismissal. 

As discussed in previous posts, under the Regulation neither a reduction in the employees hours of work or wages constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period. The COVID-19 Period keeps changing on us, but it currently runs from March 1, 2020 to September 25, 2021.  There have been conflicting decisions about whether the Regulation also removes an employee’s right to assert a constructive dismissal under the common law. 

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Heads up Multinational Employers! A Change to the $2.5 Million Payroll Threshold Calculation.

A new ruling from Ontario’s Divisional Court has changed which employees will be entitled to severance pay. While the law has been mixed, it was generally the case that the $2.5 million payroll threshold for the purposes of calculating severance pay applied to Ontario payroll only. The Divisional Court has now ruled that global payroll should be considered. 

What’s Severance Pay?

In Ontario, employers with a payroll of more than $2.5 million must, upon termination or severance of employment, pay severance pay to employees with five or more years of service. This aspect of the Ontario Employment Standards Act, 2000 (ESA) increases the legal minimums employers are required to pay to long service employees significantly. Under the ESA, notice of termination caps out at 8 weeks, whereas severance pay can be up to 26 weeks. 

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