The Reopening Ontario Act: Employment Implications
*Article written by Hannah Goranson
On July 24, 2020, the Reopening Ontario (A Flexible Response to COVID-19) Act (the "Act") came into force. As part of Ontario's staggered approaching to re-opening the province for business amidst the COVID-19 crisis, this new piece of legislation has important implications for employers and employees alike.
General Implications of the Reopening Ontario Act:
The Act does a number of important things.
Firstly, effective July 24, 2020, the Act terminated the COVID-19 declaration of emergency. The COVID-19 declaration of emergency had been in effect for the whole of Ontario since March 18, 2020.
Secondly, while the declaration of emergency has ended, the Act expressly provides that the COVID-19 orders that were in place at the time the Act came into force will continue to apply for the next 30 days. These orders can be further extended in 30-day increments, for up to a total of one year. The Act itself is only applicable for one year, until July 24, 2021.
Lastly, the power the to amend, extend or revoke the COVID-19 orders has been shifted from Ontario's legislature to the Lieutenant Governor in Council or a delegated Minister. Subject to the excepted orders listed in s 4(5) of the Act, the COVID-19 orders can now be amended without the approval of the legislature.
Employment Implications of the Reopening Ontario Act:
The Act has significant consequences for Ontario's employers and employees. Given the complexity and scope of the Act, it will take some time to determine the full impact of the legislation. However, some of the most immediate consequences are as follows.
(1) Declared Emergency Leave of Absence ends as of September 4, 2020
As we outlined in our previous blog post, Deemed COVID-19 Emergency Leave of Absence, Not Constructive Dismissal, employees who have experienced a reduction in hours or work due to COVID-19 may be said to have been on a deemed Declared Emergency Leave or Infectious Disease Emergency Leave. These are two separate types of leave of absence, but both are related to COVID-19. Both are job-protected.
The Act that reopens the Ontario economy and terminates the declaration of emergency effectively starts the clock ticking in respect of the Declared Emergency Leave of Absence ("ELA"). As of September 4, 2020, employees who have been off work as a result of the declared emergency will no longer be deemed to be on this job-protected ELA.
For employers, this means that following September 4, 2020, these employees should be reinstated to their previous positions with no changes to the terms or conditions of their employment. Likewise, employees currently on an ELA should be prepared to return to work on September 4, 2020.
Certainly, this is subject to any entitlement to the Infectious Disease Emergency Leave and the continuing developments of the pandemic in Ontario.
Given the continuing economic impact of COVID-19, the reality is that many employers may not be in a position to immediately reinstate all employees on September 4, 2020. If an employee is not reinstated to their pre-COVID-19 position, the employee may be able to seek legal relief against the employer.
In such a situation, employers are encouraged to seek legal advice as to what options may be open to them to help them transition through these difficult times.
(2) Entitlement to Declared Emergency Leave ended as of July 24, 2020
As stated above, under the Ontario Employment Standards Act there are two types of ELA that an employee may qualify for: (i) Declared Emergency Leave, and (ii) Infectious Disease Emergency Leave. The Declared Emergency Leave requires that an emergency declaration is in effect at the time an employee starts their ELA. Thus, the termination of the declaration of emergency means employees can no longer take this type of leave.
(3) Continuing Entitlement to Infectious Disease Emergency Leave
The Act does not, however, impact an employee's entitlement to take an Infectious Disease Emergency Leave. For as long as COVID-19 remains classified as an infectious disease, employees may be entitled to take an Infectious Disease Emergency Leave based on their individual circumstances. Specifically, employee's may be entitled to take a leave if any of the following apply:
- The employee is under medical investigation, supervision or treatment due to COVID-19;
- The employee is quarantined or isolating due to a public health order relating to COVID-19;
- The employee has been directed to not attend work by the employer due to concerns that the employee may expose others in the workplace to COVID-19;
- The employee is caring for a designated individual due to a matter related to COVID-19. This includes caring for a child due to the continued day care or school closures; and
- The employee is directly impacted by COVID-19 related travel restrictions.
(4) COVID-19 Restrictions Still in Effect
As noted above, the COVID-19 orders that were in effect as of July 24, 2020 continue to apply for at least the ensuing 30 days and are subject to renewal by 30-day increments. This means that employers must continue to follow the orders in place, including those governing the reopening of businesses. For example, employers in areas in Stage 3 of reopening must comply with the rules set out in O Reg. 364/20, Rules for Areas in Stage 3, which include maximum gathering limits, physical distancing requirements, and hygiene standards for the workplace, among others.
Conclusion:
In a time of rapid change, the Act is yet another development that significantly impacts Ontario employment law. The Act's termination of the declaration of emergency has triggered a number of consequences, including starting the countdown for employers to return employees to work and eliminating one of the ELAs available to employees. Given the complexity of the legislation and the ripple effect on employment rights and obligations, employers and employees alike are encouraged to seek legal assistance if they have any questions about how the Act may impact them. Lee Workplace Law would be happy to help.
