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Jul 31, 2020

The End of the State of Emergency in Ontario: Primary Implications for Employers

By Daria (Dasha) Peregoudova

On July 24, 2020, Bill 195, Re-opening Ontario (A Flexible Response to COVID-19) Act, 2020 ("Bill 195") came into force and has officially brought an end to the declared State of Emergency in Ontario.

Pursuant to Bill 195, most orders made under Ontario's Emergency Management and Civil Protection Act (“EMPCA”), will remain in effect for at least 30 days from July 24, 2020 notwithstanding the end of the state of emergency. For example, Bill 195 does not have any impact on employees’ continued ability to qualify for the Infectious Disease Emergency Leave under Ontario's Employment Standards Act, 2000 (“ESA”). For more information about the leave, please refer to our prior bulletin.

However, Bill 195 has two significant implications for employers. Primarily, employers must take note that the prior amendments to the ESA under O. Reg. 228/20, which deemed employees whose hours or wages were reduced or eliminated due to COVID-19 to be on Infectious Disease Emergency Leave rather than temporary layoff, will now expire six weeks after July 24, 2020 on September 4, 2020.

While the temporary layoff timeframe allowed by the ESA was previously on pause, Bill 195 means that the clock has started ticking again towards temporary layoffs potentially becoming terminations of employment. In other words, effective September 4, 2020, employers will no longer be able to rely on the Regulation to defer their termination-related liabilities under the ESA. As such, recall plans should be put in place. At the very least, employers should be aware that effective September 4, 2020, normal temporary layoff timeframes of up to 13 weeks in a 20-week period, or 35 weeks in a 52-week period (if certain conditions are met) will restart.

It should be noted that layoffs remain subject to the right to layoff as per the terms of an employee’s employment agreement, which has continued to be a source of friction in the unprecedented COVID-19 climate. Employers and employees alike are awaiting judicial guidance on this point. 

The second implication of Bill 195 is that all employees currently on Declared Emergency Leave under the ESA (not to be confused with the Infectious Disease Emergency Leave) as a result of an order under EMCPA, the Health Protection and Promotion Act or because an employee is needed to provide care or assistance to “specified individuals,” will become ineligible as the declared emergency is deemed to have ended as of July 24, 2020. In many cases, the two types of leave overlap and employers will have to be mindful of the differences and similarities when transitioning employees back to work.

Do not hesitate to contact a member of the Aird & Berlis Workplace Law Group should you have any questions.

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