Ontario’s temporary changes to layoff regulations during the COVID-19 pandemic have been called helpful by supporters of small business but advocates for low-wage workers characterize the change as unhelpful.
The province made an amendment to its infectious disease emergency leave regulation which it claims will protect businesses from incurring “unsustainable termination costs” when reducing their staff due to lack of business during the novel coronavirus the pandemic.
The changes come under the Employment Standards Act, 2000 (ESA) which now deems non-unionized employees who’ve had hours reduced or eliminated due to COVID-19 on infectious disease emergency leave, potentially avoiding termination and a severance payout from an employer.
Under previous regulations, workers on a temporary layoff after 13 weeks are considered terminated, entitling them to termination pay and, in some cases, additional severance pay.
The province announced the change on Tuesday and says the alteration of the ESA also changes rules around constructive dismissal which previously allowed an employee to resign or claim they’ve been fired if an employer reduced hours or wages without the employee’s consent.
However, the new regulations do not consider an employee as constructively dismissed if an employer reduces hours or wages for COVID-19 reasons.
The province says the change is being applied retroactive to March 1, 2020 and will stay in effect until six weeks after the Ontario’s state of emergency ends.
A spokesperson for the Canadian Federation of Independent Business (CFIB), praised the regulations which she says should help employers fearing severance costs might put them into bankruptcy.
“The new regulation will help businesses stay afloat and keep their employees as we move further into economic recovery,” said Julie Kwiecinski.
The Ontario Federation of Labour (OFL) is calling the change “not right” and an “attack on the most vulnerable,” saying the Ford government has changed the rules and given employers a tool they can use to “avoid their financial obligations to their employees.”
“By forcibly deeming laid-off workers onto emergency leave, and indeterminately delaying their right to termination and severance pay, the new rules increase the economic precarity of workers at a time when they are the most vulnerable,” said OFL president Patty Coates in a statement on Tuesday.
The OFL says workers laid off due to COVID-19 and receiving financial assistance through the Canadian Emergency Response Benefit (CERB) are in “limbo” as federal government benefits only last one person for 16 weeks and potentially leave them without access to termination or severance pay for an unknown time.
“It is lower-paid and precarious workers who will be most affected by the negative consequences of these changes,” said Coates.
Meanwhile, the spokesperson for advocacy group Fight for $15 & Fairness says the situation for low wage workers went from “bad to worse.”
“Taking away their hard-earned entitlements worth several weeks of wages is a slap in the face for many who are just one rent cheque away from losing their housing, ” said Pam Frache.
Employment Lawyer Lior Samfiru of Samifiru Tumarkin LLP told Global News that one of the things the new rules do is eliminate the concept of a temporary layoff, at least for a period of time.
“Instead, they are on a leave of absence, infectious disease leave,” said Samfiru, “At some point, the government is going to end that six weeks after that, that leave of absence ends.”
Samfiru says the regulations also deem all employees still working with reduced hours as on leave, which he calls “absurd.”
“Under the new regs, you could be working 90 per cent of your hours, but you’re considered to be on a leave of absence, which doesn’t make much sense.”
Samfiru believes the moves “buy employers time” to make changes and not have to worry about when a temporary layoff has to end and the make the ultimate choice of either terminating or pay the employee their severance.
However, the changes are a bit “misleading” to employers and could lead to legal action in a dispute with an employee who didn’t agree to give up their common law rights when they took the job.
“Under common law, an employer can still not lay someone off temporarily at all for any period of time. That’s considered a termination of employment.” Samfiru said, “My concern is that it misleads them and then by the same token it misleads employees, because how many people will actually understand their rights.”
In making the change, the Doug Ford government pointed to recent StatsCan numbers that show 379,000 workers in Ontario were temporarily laid off in April 2020 as a result of businesses closing or reduced operations to comply with emergency orders.
The province also estimates about 2.2 million employees were directly affected by pandemic-related shutdowns through a job loss or temporary layoff.
Questions about COVID-19? Here are some things you need to know:
Symptoms can include fever, cough and difficulty breathing — very similar to a cold or flu. Some people can develop a more severe illness. People most at risk of this include older adults and people with severe chronic medical conditions like heart, lung or kidney disease. If you develop symptoms, contact public health authorities.
To prevent the virus from spreading, experts recommend frequent handwashing and coughing into your sleeve. They also recommend minimizing contact with others, staying home as much as possible and maintaining a distance of two metres from other people if you go out. In situations where you can’t keep a safe distance from others, public health officials recommend the use of a non-medical face mask or covering to prevent spreading the respiratory droplets that can carry the virus.
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