When the pandemic hit, the Ontario government temporarily changed employment laws to create the Infectious Disease Emergency Leave (IDEL). Announced in March 2020, IDEL was meant to provide job-protected leave to employees who needed to take time off work for reasons related to COVID-19.
As of June 7, IDEL has been extended to September 25.
IDEL allows employers to lay off employees or reduce their hours outside the normal Employment Standards Act (ESA) rules for constructive dismissal.
But employees still have rights. IDEL does not take away employees’ ability to treat their jobs as having been terminated under common law if their hours of work have been affected by the pandemic. Employees don’t have to wait for IDEL to expire to be called back from a temporary layoff or claim severance.
My team of employment lawyers has received lots of questions from workers currently on a temporary layoff permitted by IDEL. Here’s what employees need to know.
What can I do if I don’t want to stay on a temporary layoff anymore?
You don’t have to wait for your employer to call you back to work. If you were put on a temporary layoff allowed under IDEL, you can choose to treat it as a termination.
Can my employer keep me on a layoff after this IDEL extension ends?
Your employer must bring you back to your job when IDEL ends. If they don’t, you have the right to consider this as a termination of employment and get severance.
If your employer decides to keep you on a temporary layoff after IDEL ends, you will be considered to be on a regular temporary layoff, which could last for up to another 35 weeks. You can access EI benefits during this time or you can choose to take severance and look for a different job.
Can my employer fire me while I’m still on IDEL?
If you were placed on IDEL, you cannot be let go unless your employer can show that they have absolutely no choice but to fire you. Being let go while on protected leave could be deemed a reprisal, and may entitle you to both severance pay and damages.
Does the time spent on IDEL affect my seniority?
Any time spent on IDEL still counts toward the overall time you’ve spent working for the company.
My employer wants me to return to work, but in a different role or for less pay. What should I say?
Your employer must bring you back to the same job for the same pay and hours. If they change your pay or hours, it counts as a constructive dismissal, and you are entitled to severance.
I have been working through the pandemic, but with cuts to my hours or pay. Does IDEL let them do that?
It is illegal for your employer to cut your hours or pay, even during the pandemic, unless you agree to these changes or your employment contract allows your employer to make them. You can still treat a cut to hours or pay as a termination through a constructive dismissal and leave with your full severance.
IDEL protects Ontario employers from constructive dismissal claims filed through the Ministry of Labour for minimum severance. But it doesn’t stop an employee from pursuing a legal claim for constructive dismissal for full severance pay under common law.
If you have been on a temporary layoff or had your hours or pay reduced during IDEL, my firm can help you deal with this situation. You don’t need to wait for IDEL to expire. We’ve helped hundreds of individuals who have been put on temporary layoffs or had their hours or pay cut during the pandemic.
Have you been put on a temporary layoff?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta, or British Columbia.
Get the advice you need — and the compensation you deserve.
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.