Authors: Luisa D’Alessio & Ross Dunsmore
Last week, the Ontario Legislature came together to pass 18 pieces of legislation, including emergency measures needed to protect public health and prepare for economic recovery. By quickly introducing and passing critical legislation, the government hopes to support individuals, families and businesses across the province. Two notable pieces of legislation which were passed were Bill 195 - Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and Bill 197 - COVID-19 Economic Recovery Act, 2020. Both of these pieces of legislation will have a substantial impact on employment law in Ontario.
WHAT IS BILL 195 – REOPENING ONTARIO (A FLEXIBLE RESPONSE TO COVID-19) ACT, 2020?
This bill ensures that emergency orders that were made under section 7.0.2 or 7.1 of the Emergency Management and Civil Protection Act (EMCPA), continue even after the declared emergency ends on July 24, 2020.
Bill 195 came into force on July 24, 2020.
The emergency orders which were implemented will stay in place in order to address the continued threat of COVID-19 in Ontario and are subject to extension by the province.
Orders implemented under the EMCPA as of July 24, 2020 will remain in effect for an initial period of thirty days and cannot be extended for more than 30 days at a time.
This Bill will provide the province with the necessary flexibility to address the ongoing risks and effects of COVID-19 as Ontario moves into the recovery phase.
The Lieutenant Governor in Council or a delegated Minister will have the power to extend, amend and revoke the Orders that have been continued.
WHAT WILL BILL 195 AFFECT?
Bill 195 will impact certain provisions under the Employment Standards Act which were implemented as a response to COVID-19, specifically:
Declared Emergency Leave (DEL) – Bill 195 will end employee’s entitlement to declared emergency leave under the Employment Standards Act. This is because employees are only entitled to DEL during a declared emergency under the EMCPA. Since Bill 195 ended the state of emergency on July 24, 2020, employees are no longer eligible for DEL.
Infectious Disease Emergency Leave (IDEL) – The government amended the Employment Standards Act to include a new IDEL. Bill 195 will not affect employee’s entitlement to the IDEL so long as the ESA continues to recognize COVID-19 as a designated infectious disease. Therefore, if employees are unable to work because they are under medical investigation, are in self-isolation or are taking care of individuals because of a matter related to COVID-19, the employee will continue to be entitled to IDEL.
To qualify for IDEL, the employee must be unable to work because:
Being under individual medical investigation, supervision or treatment related to COVID-19;
Following a COVID-19 related order issued under section 22 or 35 of the Health Promotion and Protection Act ("HPPA");
Remaining in quarantine, isolation (voluntary or involuntary), or subject to a control measure as a result of being advised to remain away from work by their physician;
Refraining from attendance at work under direction of the employer in response to the employer's concern that the employee might expose other individuals in the workplace to a designated infectious disease;
Providing care or support to certain individuals because of a matter related to COVID-19:
the employee's spouse (of the same or opposite sex, whether or not married)
a parent, step-parent or foster parent of the employee or the employee's spouse
a child, step-child or foster child of the employee or the employee's spouse
a child who is under legal guardianship of the employee or the employee's spouse
a brother, step-brother, sister or step-sister of the employee
a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse
a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
a son-in-law or daughter-in-law of the employee or the employee's spouse
an uncle or aunt of the employee or the employee's spouse
a nephew or niece of the employee or the employee's spouse
the spouse of the employee's grandchild, uncle, aunt, nephew or niece
a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members);
Requiring time away from work to care for their child whose school or day care was closed because of COVID-19.
However, employees who are deemed to be on IDEL under Regulation 228/20 in the ESA are affected by Bill 195.
Deemed IDEL under Regulation 228/20 – In May, the government amended the ESA adding Regulation 228/20. This regulation allowed employees whose hours or wages were reduced or eliminated as a result of COVID-19 to be on IDEL retroactive from March 1, 2020 until 6 weeks after the state of emergency is over. The state of emergency was terminated on July 24, 2020 which means that on September 4, 2020, IDEL will expire for employees under Regulation 288/20. This amendment converted employees’ temporary layoffs into IDEL for the duration of the COVID-19 period in order to reduce the amount of constructive dismissal claims. Because Bill 195 ended the state of emergency, employees who were entitled to IDEL due to Regulation 228/20, will no longer be entitled on September 4, 2020.
WHAT DOES THIS MEAN FOR EMPLOYEES?
For employees who were on IDEL under Regulation 228/20, the passing of Bill 195 means that the relief provisions will expire on September 4, 2020, and employees will return to being governed under the ESA. Therefore, if an employee is still not recalled back to work or their wages are not restored by September 4, 2020, then the standard temporary layoff rules under the ESA will apply. The layoff clock starts ticking again on September 4, 2020 and employees can be terminated if they are laid off for up to 13 weeks in a 20-week period, or 35 weeks in a 52-week period. The first week of layoff would be the week of September 4, 2020. The time from March 1, 2020 to September 4, 2020 will not count towards the temporary calculation because of Regulation 228/20. Unless employees can prove that they qualify for IDEL for one of the reasons listed under the ESA, employees under Regulation 228/20 will no longer be eligible for IDEL after September 4, 2020.
WHAT IS BILL 197 – COVID-19 ECONOMIC RECOVERY ACT, 2020?
An Act to amend various statutes in response to COVID-19 and to enact, amend and repeal various statutes.
This Bill proposes to amend twenty provincial statutes, with the objective of jumpstarting economic growth and laying the groundwork for long-term, sustainable recovery.
This bill will make amendments to the Occupational Health and Safety Act, specifically, it gives the government the authority to adopt codes, standards, criteria’s and guides in response to COVID-19. It also gives them power to adopt them as they may be amended from time to time.
Received Royal Assent and came into force on July 21, 2020.
The Bill aims at simplifying regulatory processes found within different statutory contexts such as building and housing, business regulations, transportation and education.
This bill will help create jobs and generate development by getting key infrastructure projects built faster.
This bill aims at strengthen communities by ensuring municipalities are equipped with the tools they need to continue to provide critical services.
This bill will protect consumers, modernizing services, improving education systems and remove social and economic barriers for young people.