With the recent spread of the Omicron variant and the associated rollout of re-tightened health measures, winter 2022 is set to be a similarly restrictive season to what we saw last year. Accordingly, on December 7, 2021 Ontario government has extended the eligibility period for Deemed Infectious Disease Emergency Leave (“Deemed IDEL”) to July 30, 2022.

What does this change?

The eligibility period for Deemed IDEL was set to end at the end of December 2021; the Ontario government recently extended it to July 30, 2022.

Who does this affect?

This decision affects all non-unionized employees who are subject to the Ontario Employment Standards Act, 2000 and who have been temporarily laid-off or had their hours reduced due to COVID 19, or who might be subject to a temporary layoff or hours reduction before July 2022.

How does Deemed IDEL work?

Deemed IDEL allows your employer to temporarily reduce or eliminate your hours for reasons related to COVID 19 without triggering a termination under the Employment Standards Act. The purpose of this amendment was to relieve employers of the requirement to pay termination/severance pay when faced with restrictions or reduced business associated by the pandemic.

Is there any way I can recover severance pay while on deemed IDEL?

At the time of writing, it is unclear whether employees who have been forced onto deemed IDEL (i.e., layoff) are entitled to sue their employers for severance. There are conflicting decisions of the Ontario Superior Court of Justice on this point, and the conflict has yet to be decided by the Court of Appeal.

What if the reduction or elimination of my hours has nothing to do with COVID 19?

We are hearing more reports of employers abusing deemed IDEL by using it as an excuse to push away unwanted employees, without paying severance. If you can prove that your layoff was not related to COVID 19 (for instance, if your exact position has been filled by someone else), you may be entitled to sue your employer for constructive dismissal.

What will happen on July 31, 2022?

Assuming there are no further extensions to the deemed IDEL period, your employer will not need to recall you to work before July 31, 2022. After that time, a continued layoff may amount to a constructive dismissal, in which case you may quit and sue your employer for severance.

Have EI or CERB benefits been extended to account for this?

At the time of writing, the Federal government has not announced any increase to income replacement benefits for workers on deemed IDEL, which could pose a serious hardship to laid-off employees who will now need to wait another 7 months to have certainty on the future of their jobs.

If you have been terminated, laid-off, or severed from your job contact the employment lawyers at Share Lawyers. Our experienced team of Employment Law lawyers can help. We offer free consultations and there are no fees unless we win your case. Find out if you have an Employment Case!

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