On July 30, 2022, the Ontario government ended the Deemed Infectious Disease Emergency Leave (IDEL) for non-unionized employees. It was implemented on May 20, 2020 due to the global COVID-19 pandemic. It allowed employers to cut or eliminate the hours and wages of their employees for reasons related to COVID-19 without these actions amounting to dismissal under the Ontario Employment Standards Act, 2000 (“ESA”). Ontario employers could essentially lay off their employees with impunity by placing them on a “deemed IDEL”.
That means many employees will be automatically owed money from their past employers.
Deemed Infectious Disease Emergency Leave (IDEL) Ends July 30, 2022
The deemed IDEL is set to end on July 30, 2022. Employers will no longer be able to place their employees on a deemed IDEL by cutting their hours or pay without triggering the termination provisions of the ESA.
The end of the deemed IDEL on July 30, 2022, is a welcome sight for employees in Ontario, but it must be approached with caution. An employee who is currently on a deemed infectious disease emergency leave should speak with an employment lawyer or wrongful dismissal lawyer at Monkhouse Law before making any decisions that may jeopardize their legal entitlements.
When Deemed IDEL Ends, What Happens Next
If you are an employee in Ontario and are wondering what will happen to you when your deemed IDEL ends, there are two potential outcomes you should consider:
1. You could be called back to work.
This is likely the best option for employers. It may not always be worthwhile for you to return to your prior job. For instance, you may have started working elsewhere out of financial need. Whether you choose to return to work or not will have an impact on the compensation your former employer owes you. If you refuse to return to work, your employer could argue you resigned or abandoned your employment. In this case, you would no longer be entitled to severance or termination pay under the ESA. However, you may still have a claim against your employer for constructive dismissal at common law, subject to mitigation.
Note that your employer may try to introduce a new employment contract prior to or when you return. You typically should not have to sign a new employment contract to return to your job. If your employer asks you to sign a new contract, you should consult an employment lawyer.
Before choosing whether to return to work, you should speak with an employment lawyer at Monkhouse Law to determine your options.
2. You could be deemed terminated and be owed money
If your employer does not call you back then you will be deemed terminated by legislation. You may well not be contacted by your employer at all. Many employers are expected to forget about the IDEL’d employees and they will be deemed terminated.
If your employer does not call you back you should consider speaking with a wrongful dismissal lawyer or employment lawyer at Monkhouse Law. You will be entitled, at a minimum, to your termination entitlements under the ESA. However, you may be entitled to much more at common law. You could miss out on potentially several months of pay or more if you simply accept your entitlements under the ESA without first consulting with a wrongful dismissal lawyer or employment lawyer. You should never sign a severance package without first consulting with a wrongful dismissal lawyer.
In effect, anyone who was put in an IDEL leave, and not recalled, is owed money, the question is how much money.
Example of Compensation After IDEL Ends
To demonstrate the amount of compensation you may be entitled to, consider this example.
Julia was working as a salesperson at ABC Inc. when she was placed on IDEL. She had been with the company for eight years and was making $45,000 per year. Julia had been on IDEL for one full year by the time IDEL ended. Julia had therefore worked with ABC Inc. for nine total years. At this point, she was 42 years old. Instead of calling her back to work, ABC Inc. does not recall her and thus she is terminated (or they decide to terminate her rather than bringing her back).
How much was Julia owed under the ESA? How much was she owed at common law?
Compensation Under the ESA
As an employee of nine years, Julia was entitled under the ESA to eight weeks of termination pay. Furthermore, if we assume Julia’s employer had a payroll of $2.5 million or more, then Julia would also qualify for ESA severance pay. Julia’s severance pay as a nine year employee would be an additional nine weeks of pay. In total, under Ontario statutory law, Julia would be entitled to 17 weeks’ pay, or 3.9 months of compensation (i.e., $14,625). Julia would be entitled to this amount of ESA minimums even if she has been working since she was placed on IDEL. It is quite possible that in some cases the ESA minimum amount might be ‘extra’ or ‘free’ money to an employee.
Compensation at Common Law
At common law, the amount of compensation Julia would be owed may be much higher if she was out of work for some period of time between March of 2020 until August 1, 2022. As a 42-year-old salesperson with nine years of service making $45,000 per year, Julia could be owed between 8 and 10 months’ compensation (i.e., between $30,000 and $37,500) less any earnings she had during the notice period while she was trying to mitigate her losses.
As can be seen, those who were placed on IDEL may be owed substantial amounts once IDEL ends. It is for this reason that you should consult with an employment lawyer or wrongful dismissal lawyer before signing any severance package.
This was written by Shane Burton-Stoner, Employment Lawyer at Monkhouse Law.
Monkhouse Law is an employment law firm located in Toronto with a focus on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.