Ontario’s Declaration of Emergency Ends and ESA Changes: What This Means For Employees (After September 4, 2020)

On July 24, 2020, the Ontario Government ended the declaration of emergency to the COVID-19 pandemic. For employees and employers, in response to the COVID-19 pandemic, the Ontario government made a regulation that changed certain Employment Standards Act (ESA) rules during the “COVID-19 period”.  As of September 4, 2020, the government extended the COVID period to January 2, 2021. The COVID period runs from March 1, 2020 to January 2, 2021.

What does this mean for employees now that the Ontario Emergency Leave is revoked?

  • Employees will have to be recalled to their pre COVID-19 position, or a comparable position on the same terms and rate of pay by January 2, 2021.
  • Up to January 2, 2021, affected employees will continue to be on the infectious disease emergency leave.

What happens if an employee is not put back to work on the same terms by January 2, 2021?

  •  If an employee does not return to their position with the same rate of pay, the employee may have a claim for constructive dismissal. Once it becomes apparent that the employer does not intend to offer the employee the same terms, the employee should get legal advice from an employment lawyer right away to find out what their rights are. 
  • Employers may also try to introduce new contracts to employees prior to or on their return to work. Generally, employees should be able to return to their position without signing anything and should be concerned about signing a new contract. It is important to have an employment lawyer review the new proposed contract before signing.  
  •  After the September 4, 2020 deadline, employers may try to place employees on a temporary layoff pursuant to the Employment Standards Act, 2000 (ESA) since the previously temporarily laid-off employees were put on leaves. The ESA allows for a temporary layoff to be up to 13 weeks or up to 35 weeks under a very specific set of circumstances. That said, the large majority of written (or unwritten) employment contracts do not permit the employer to put employees on a temporary layoff, and the employee should get legal advice on their options. 

Employment lawyers at Monkhouse Law focus on the rights of employees and resolving employment law matters in your best interest. If you are being faced with a difficult situation at work, call us today for a free 30-minute consultation.

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