Laid off due to COVID ? READ THIS!

Regulation 228/20 Temporary Layoff/Constructive Dismissal

Without any fanfare, and with almost no discussion, the Ontario Government just changed our employment laws, and not for the benefit of workers.

On May 29th, 2020 the Ontario government announced a Regulation that makes significant changes to the Employment Standards Act, 2000 (ESA) affecting temporary layoffs and constructive dismissals related to COVID-19. It seems the intent of the government was to help preserve the profits of businesses by letting them cite COVID as the reason for a reduction of wages or hours, thus avoiding potential Ministry of Labour claims of constructive dismissal.

Previously, an employee could only be on temporary layoff for a maximum of 13 weeks (in some cases 20 weeks). After this point the layoff would be considered a permanent layoff and trigger entitlements to termination pay or severance pay under the ESA. Those employees who were placed on temporary layoff due to COVID in March would have reached this mark and employers would have had to face potentially massive termination/severance costs. It also means that many workers would no longer have a job to return to.

One of the few positives for workers in these changes related to those previously on temporary layoff will be reclassified as on the new Infectious Disease Emergency Leave (IDEL). This means that workers on this leave would remain eligible for government support such as CERB and would equally have the right to reinstatement afterwards.

However, for the few that will feel better protected as a result of these changes, many more will be left exposed to exploitation by their employers. This is particularly true when considering that the changes allow an employer to reduce a workers wages and hours without it being considered constructive dismissal by the Ministry of Labour (MOL) as long as the reason for the reduction is related to COVID-19. Unfortunately, there is nothing in the legislation that makes clear how an employer could or would demonstrate that a reduction is COVID-19. Considering trends with Ministry of Labour inspections and enforcement it is impossible for the government to ask workers to trust them to hold employers accountable. Especially when the legislation does make clear that any claims submitted to the MOL regarding reduction of wages, hours or termination/severance pay related to the COVID pandemic are deemed to have not been filed. This means that should an employee want to pursue such a case they would only be able to do so in court where common law entitlements remain the same. Of course, court comes with filing fees, court fees, and likely legal fees in order to put forward a good case. This money and energy needed for such a process is beyond the capacity of the low wage precarious workers that will be most impacted by these changes. 

The overall effect of this quick change is one of an already vulnerable working poor left even more at the mercy of their employer and with even less legal protection and access to justice. Unless of course they can afford to pay to go to court, and our government knows they can’t.

For a more detailed plain language breakdown of the changes:

Link to the Regulation: