What workers, employers can expect under new rules
New regulations released by the Ontario government are rewriting history by changing what was formerly a temporary layoff into an “emergency leave.”
The new rules, which apply to the period from March 1 until six weeks after Ontario’s emergency order is lifted, have both good and bad implications for employees. It generally strengthens job and benefit rights, but it reduces some rights to take legal action for “constructive dismissal.”
The Star talked to Stuart Rudner, an employment lawyer with Rudner Law based in Markham, to find out what workers and employers should expect.
“They’ve rewritten history and changed all those (temporary) layoffs into leaves of absence,” says Rudner.
He says the new regulations under Ontario’s Employment Standards Act (ESA) will have several major direct impacts. Firstly, if you have been temporarily laid off, your employer is required to give you your old job back by the end of the emergency period. While you had rights to getting your job back under existing temporary-layoff provisions, your rights weren’t as explicit and the timing was less clear-cut.
Secondly, under the emergency leave provisions, your employer is now required to continue to pay benefits, whereas employers doing temporary layoffs didn’t always have to do that previously. However, the regulations won’t require employers to start paying benefits now if they had temporarily laid off employees in the early stages of the crisis without benefits, says Rudner.
Thirdly, the regulations defuse the “ticking time bomb” created by time limits that go with temporary layoffs made previously under the ESA, says Rudner. The temporary layoffs as defined by the original act are limited to 13 weeks (although they can be extended to 35 weeks under certain circumstances), after which they are deemed
to be permanent terminations.
The 13-week limit was fast approaching for layoffs which took place in the early phases of the COVID-19 crisis in midMarch. The new rules suspend that 13 week period, which will resume for temporary layoffs after the temporary measures are lifted.
The changes also curtail some employee rights to bring legal action for “constructive dismissal” during the COVID-19 period. Temporary layoffs, reduced hours, and cuts in pay will not be considered constructive dismissal under the
ESA during this period. However, the larger and more substantial legal actions for constructive dismissal usually come under common law, and employees continue to have those rights, says Rudner.
David Aston, a freelance contributing columnist for the Star, is the author of “The Sleep-Easy Retirement Guide.” He is a personal finance and investment journalist. He has an MA in economics and is a chartered professional accountant. Reach him via email: davidastonstar@gmail.com