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Understanding Ontario’s new Infectious Disease Emergency Leave regulation


After the COVID-19 pandemic arrived in Ontario, the government created a new kind of leave called “Infectious Disease Emergency Leave”. The purpose of this leave was to allow workers to stay home for reasons related to COVID-19 without losing their jobs. The law helped people who were in quarantine or who had to self-isolate, and even parents who had to take care of their children because schools were closed.

On June 1, 2020, the government of Ontario enacted a new regulation changing the rules for Infectious Disease Emergency Leave and the rights of non-unionized workers to termination and severance pay. Workers who are laid off due to COVID-19 are now deemed to be on Infectious Disease Emergency Leave instead. This change means that some workers will not be able to claim termination or severance pay. Other changes have limited the rights of workers to claim that they have been dismissed from employment if their employer reduces their hours of work or wages.

To understand the impacts of this new emergency leave regulation, you need to understand what your rights were before the new rules came into effect.

Under Ontario’s Employment Standards Act (ESA) most workers had these protections:

  • If your hours of work or rate of pay (hourly wage or salary) were temporarily reduced or eliminated for reasons related to COVID-19, you could claim that this change was a “constructive dismissal”. A constructive dismissal happens when your employer does not actually fire you but makes a substantial change to your work without your agreement. In effect, your employer fires you from the job that you originally had. Under the ESA, workers who are constructively dismissed have a right to termination pay and, in many circumstances, an additional amount of money called severance pay. Workers who think that they were constructively dismissed could complain to the Ministry of Labour. If the Ministry agreed with the worker, the Ministry could order the employer to pay the worker termination and severance pay.
  • If you were laid off for reasons related to COVID-19, your employer would not be allowed to keep you laid-off forever. Under the ESA, if you were laid off for at least 13 weeks, your lay off would be considered to be a termination. At that point, you could be entitled to termination and severance pay, and complaint to the Ministry of Labour if your employer refused to pay it to you.
  • If you were on a job protected leave, including Infectious Disease Emergency Leave, your employer had to continue to make contributions to your benefit plans during your leave (e.g. life insurance, extended health, dental) unless you decided to stop participating in the benefit plans while on the leave.

Ontario’s new rules essentially take away these rights.

Under the new emergency leave regulation, if your hours of work or wages were temporarily reduced due to COVID-19, and you had not already claimed to have been constructively dismissed by May 29, 2020, those reduction of hours or wages are no longer considered to be constructive dismissals under the ESA. This means that you cannot complain to the Ministry of Labour and ask them to order your employer to pay you termination and severance pay. After May 29, your only option would be to sue your employer in Court, which can be very expensive and difficult to do without legal assistance.

Under the new emergency leave regulation, if you were laid off due to COVID-19, you are now “deemed” to be on Infectious Disease Emergency Leave instead. The only exception is if your lay-off already triggered the ESA rules about deemed termination before May 29. For this to apply to you, you would have had to been laid off since February 28, 2020, and possibly earlier. If you are now deemed to be on Infectious Disease Emergency Leave, you can be off work for much longer than 13 weeks and still not have a right to termination or severance pay.

You may also have lost your right to have your benefits continued if you are now deemed to be on an infectious disease emergency leave. If your employer was not already paying for your benefits as of May 29, then they are not required to do so for the rest of your leave. If you were originally laid off due to COVID-19, there is a good chance that this will apply to you, since most of the time employers do not need to pay for benefits for laid off workers.

These new rules are set to continue for the foreseeable future. They only expire six weeks after Ontario’s current state of emergency is declared to be over.