Amendments to the Employment Standards Act, 2000 – May 29, 2020 – Impact on Temporary Layoffs This blog is co-written by our former articling student, Janet Son. On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). During the pandemic, many businesses were forced to close and were faced with an impossible situation. According to the Financial Accountability Office of Ontario, approximately 2.2 million Ontario employees have experienced temporary layoffs, job losses or reduced hours in 2020. However, under the ESA if a temporary-lay off runs longer than 13 weeks in any period of 20 consecutive weeks it is considered a deemed termination and the employee would be entitled to termination pay and severance pay (a longer layoff of up to 35 weeks in a period of 52 consecutive weeks is permitted if certain criteria are met). Under Reg 228/20, businesses are no longer required to pay the termination pay and severance pay to their employees, pursuant to the ESA, due to these types of deemed terminations. As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. Affected workers will remain employees and will also remain eligible for federal emergency income support programs. The regulation applies retroactively from March 1, 2020, and will expire 6 weeks after the state of emergency ends. Also, Section 7 of the regulation states that a temporary reduction or elimination of an employee’s work hours due to COVID-19 will not constitute constructive dismissal during the COVID-19 period. Further, in accordance with section 8, complaints filed with the Ministry of Labour due to a reduction or elimination of work hours “shall be deemed not to have been filed if the temporary reduction or elimination of hours or the temporary reduction in wages occurred during the COVID-19 period” and was related to COVID-19. However, Regulation 228/20 does not alter the common law with respect to constructive dismissal, as it relates to temporary layoffs under the ESA. Currently, it is well-established law that the employer does not have a common law right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. Typically, in order for the common law to be altered by statute, there would need to be express language in the statute to that effect, which is not the case here. How the Court will interpret and apply Reg 228/20 remains to be seen The courts may still find that employees have been constructively dismissed at common law, but they may award less generous severance package to employees. The specific facts which resulted in the temporary layoff or reduction in hours will also be relevant. Key Takeaway for Employers: Employers will not be obligated to pay out hefty sums for severance pay and termination pay under the ESA while the state of emergency is still ongoing and 6 weeks thereafter. However, if an employee has already been given a written notice of termination between March 1, 2020, and May 29, 2020, they will not automatically deemed to be on infectious disease emergency leave. Finally, this regulation does not bar employees from pursuing an action in common law and it is unclear at this stage how courts will interpret and apply this regulation. Key Takeaway for Employees: Employees will no longer be able to claim termination and severance pay pursuant to the ESA once the temporary lay-off period under the ESA ends. They now also cannot file a complaint with the Ministry of Labour as it will automatically be dismissed if the elimination or reduction of hours was due to COVID-19. However, employees can still proceed with claims in the civil courts pursuant to the common law. If you have more questions about how this new regulation will affect you as either an employer or employee contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawJune 2, 2020July 5, 2023
Employment Bill 148 is Being Scrapped…But Which Parts Are Uncertain Last week Doug Ford announced that he was halting the implementation of a $15 per hour minimum wage in Ontario but it looks like he is seeking to additionally roll back other employment laws that have already come into force. Yesterday, October 2, 2018, Doug Ford announced in the Ontario legislature that he was going to scrap Bill 148, a bill enacted by the previous Liberal government (after a broad consultation) that increased protections for workers in an effort to alleviate the impacts of precarious work (see our previous blogs on Bill 148). Bill 148 introduced many new provisions to both Ontario’s Employment Standards Act and Ontario’s unionized Labour Relations Act. Some of the new provisions included a presumption that a worker is automatically an employee unless it is proven otherwise (an employee classification gets the most protection under labour and employment legislation), mandated scheduling provisions including the expansion of the “3 hour rule” (i.e. an employee gets paid for three hours of work if his/her shift is cancelled less than 48 hours before he or she was to commence working), equal pay for equal work laws between full and part-time workers, personal emergency leave provisions (10 days of emergency leave absences with 2 days of paid leave), and increased regulation on temporary help agencies. However, whether Bill 148 is going to be axed in its entirety or in a piecemeal fashion remains to be seen. Doug Ford’s statements in the legislature were incredibly broad, saying “We’re getting rid of Bill 148. We’re going to make sure we protect the front-line workers because 60,000 people lost their jobs under Bill 148 … We’re going to make sure we tell the world Ontario is open for business. We’re going to make sure we’re competitive around the world.” After Question Period, reporters swarmed Jim Wilson, Minister of Economic Development, Job Creation and Trade, with respect to Ford’s comments. Wilson scaled back Ford’s comments, stating that the government was still reviewing Bill 148 and a final decision had yet to be made. Wilson made statements that despite the Conservative government voting against the Bill when the Liberals introduced it, they were likely going to keep the $14 an hour minimum wage and other sections. Devry Smith Frank LLP will be monitoring the province’s efforts to scrap Bill 148. It is important to contact a labour and employment law lawyer to keep apprised of recent legislative developments and get advice on how it will impact your business or personal contracts. If you need assistance with labour and employment laws please contact one of our employment lawyers. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawOctober 10, 2018March 27, 2024