On July 24, 2020, Ontario revoked the emergency order that suspended the temporary lay off clock and deemed employees to be on infectious disease emergency leave (see Ontario Regulation 228/20). This means that for employees who saw wages or hours reduced due to the pandemic, the regular rules for temporary lay offs under the Employment Standards Act, 2000 (“ESA”) apply six weeks from July 24, 2020. Any employees on lay off due to the pandemic (deemed infectious disease emergency leave) should be recalled by September 4, 2020, or they may be deemed terminated. 

If employees are deemed terminated, they are entitled to the minimum standards for notice or pay in lieu of notice under the ESA and possibly common law reasonable notice, depending on the terms of their employment contracts. Rather than recall employees, employers could also possibly place employees on a fresh temporary lay off under the ESA, if the employee’s contract provides for it.

Employers who have employees on deemed infectious disease emergency leave should start preparing for workers to return, termination notices to be given, or extended lay offs in accordance with the ESA. Employers should consider issuing notices or updates to employees to clarify the situation. 

Employees may still use the infectious disease emergency leave for other situations where there is a concern about COVID-19, such as staying home if there is a suspected illness. 

Katie Brack