What you need to know about layoffs due to COVID-19 and recent legal changes affecting them

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Non-unionized employees in Ontario hoping to be called back to work from COVID-19-related layoffs in the new year got some disappointing news just a week before Christmas.

On December 17, the Government of Ontario updated an aspect of its Infectious Disease Emergency Leave (IDEL) policy that was intended to help businesses weather the economic impact of the pandemic. 

IDEL was previously scheduled to expire on January 2, 2021, but has now been extended to July 3, 2021. This means that layoffs that fall under the policy could last well into 2022.

The IDEL extension, however, does not strip employees of their rights.

Here’s what you need to know if you’re a non-unionized employee in Ontario on an IDEL layoff.

What is the Infectious Disease Emergency Leave? 

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IDEL is an unpaid leave of absence that was introduced by the province in March 2020 in response to COVID-19. It allows non-unionized employees in Ontario to take time off to deal with the new coronavirus. Employers cannot threaten, penalize or fire workers on this leave.

IDEL also allows an employer to reduce an employee’s wages or hours of work, including by placing them on a temporary layoff. This is meant to help employers cope with the provincially mandated closures of non-essential businesses and other measures intended to help stop the spread of the coronavirus.

What does the IDEL extension mean? 

Extending IDEL beyond January 2, 2021, means that affected employees may remain on a temporary layoff or have their hours significantly reduced until July 3, 2021. At that point, employers can place workers on another temporary layoff until March 2022.

READ MORE: Employment rights during the second wave of COVID-19

Could I really be kept on a COVID-19-related layoff until March 2022? 

While many people assume they will be immediately recalled to work on July 3, 2021, that may not be the case. The reason you could be off work until March 2022 is that once the July date comes and goes, your employer will have the ability, in certain cases, to place you on a further 35-week layoff, which would last until mid-2022.

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Do I have to accept a temporary layoff or reduction in pay under the Infectious Disease Emergency Leave regulation?

You do not have to accept a temporary layoff or pay cut.

As I often explain on episodes of the Employment Law Show through radio, TV and Facebook, job changes such as temporary layoffs and pay cuts are fundamentally illegal unless accepted by an employee or permitted by an employment contract. The IDEL regulation only allows your employer to lay you off or make changes to your job if you accept it.

If your employer makes significant changes to your job that you don’t accept, you can choose to consider it as a constructive dismissal and pursue full severance pay.

READ MORE: What you need to know about wrongful dismissal

Does IDEL stop me from pursuing a constructive dismissal and severance pay?

IDEL eliminates your ability to treat a COVID-19-related layoff as a termination with a severance package under provincial employment law. 

What hasn’t changed during the pandemic is your common law employment rights. Your option to trigger a constructive dismissal with full severance pay has not been affected. Depending on certain factors, you could receive up to 24 months’ pay. This has been a surprise to the thousands of employees across the province who continue to contact my firm in search of answers and financial support during the pandemic.

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READ MORE: What to do if you’re an older worker laid off during COVID-19

What happens if I decide to wait until I am called back to work?

Many employees have been waiting to be called back to work since the earliest stages of the pandemic. Unfortunately, some may not be called back for another 15 months — or at all.

Rather than wait for your employer to determine the future of your employment, you can take control of your situation by pursuing the severance pay you’re entitled to in Ontario and looking for a new job.

What can I do about a temporary layoff or pay cut right now?

If you don’t want to accept COVID-19-related changes to your job, contact my team immediately so that we can review your situation and find out what your options are. 

If severance is owed, we can calculate how much severance you should receive. One of our experienced lawyers or paralegals can then negotiate a severance package with your employer so that you can maintain some financial security and look after yourself and your family during these uncertain times.

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Have your hours of work or pay been affected by COVID-19? Do you want to find out what your rights are?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve — from the most positively reviewed employment law firm in the country.

Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.