Ontario Regulation 228/20 - Infectious Disease Emergency Leave

O. Reg. 228/20 – Infectious Disease Emergency Leave - was filed on May 29, 2020.  It revoked and replaced O. Reg. 66/20, which had the same title.

As of May 29, 2020, O. Reg. 228/20:

• Incorporated the provisions from O. Reg. 66/20, which:
  • was made on March 19, 2020 but pursuant to s. 3 of that regulation was deemed to have come into force on January 25, 2020,
  • established which diseases are designated as infectious diseases for purposes of infectious disease emergency leave,
  • prescribed a start date of January 25, 2020 for the entitlement to infectious disease emergency leave because of a reason set out in subclauses 50.1(1.1)(b)(i) to (vi) of the ESA related to coronavirus (COVID-19). 
    • During the time O. Reg. 66/20 was in effect, the only reasons for which there was an entitlement to infectious disease emergency leave for COVID-19 were set out in subclauses 50.1(1.1)(b)(i) to (vi) of the ESA – i.e. there were no prescribed reasons pursuant to subclause (vii)).  

2. Introduced new provisions that apply to non-unionized employees during the defined COVID-19 period and that:

• prescribes a new reason pursuant to subclause 50.1(1.1)(b)(vii) of the ESA for which there is an entitlement to infectious disease emergency leave: the employee’s hours of work are temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19,
• deems employees who are not performing the duties of their position because of the prescribed reason to be on infectious disease emergency leave under the ESA in respect of any time that the employee is not performing their duties for that reason,
• provides that employees whose hours of work or wages are temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19 are not considered to be laid off under the ESA,
• provides that a temporary reduction or temporary elimination of an employee’s hours of work or wages by the employer for reasons related to COVID-19 does not constitute a constructive dismissal under the ESA,
• deems, with exceptions, complaints not to have been filed with the Ministry if they were filed for termination or severance of employment on the basis that the employee’s wages or hours of work were temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19 during the defined COVID-19 period.   

O. Reg. 228/20 initially defined the “COVID-19 period” to be retroactive to March 1, 2020 and to extend until six weeks after the day the emergency declared by Order in Council 518/2020 (Ontario Regulation 50/20) pursuant to the Emergency Management and Civil Protection Act is terminated or disallowed. The emergency was terminated on July 24, 2020, which meant the final day of the COVID-19 period was initially set to be September 4, 2020.  On September 3, 2020, the definition of “COVID-19 period” was amended to extend the COVID-19 period until January 2, 2021. As such, the “COVID-19 period” is March 1, 2020 to January 2, 2021.

O. Reg. 228/20 was amended on August 24, 2020 to prescribe an additional reason pursuant to clause (vii) of s. 50.1(1.1)(b) of the ESA for which employees are entitled to infectious disease emergency leave, retroactive to July 24, 2020: an order made under s. 7.0.2 of the Emergency Management and Civil Protection Act that is continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, or any amendment to such an order, that relates to the designated infectious disease applies to the employee.

O. Reg. 228/20  Subsection 1(1) – Interpretation and Application

1. (1) In this Regulation,

 “COVID-19 period” means the period beginning on March 1, 2020 and ending on January 2, 2021. 

Subsection 1(1) provides the definition of the term “COVID-19 period”.  This term is used in several provisions of the regulation to establish the time period during which certain rules in the regulation apply. 

“COVID-19 period” means the period beginning on March 1, 2020 and ending on January 2, 2021.

The definition of “COVID-19 period” in s. 1(1) originally provided that it ended on the date that is six weeks after the day the COVID-19 declared emergency (i.e. the emergency declared by Order in Council 518/2020 – O. Reg. 50/20 - on March 17, 2020) is terminated or is disallowed by the Legislature. As the emergency was terminated on July 24, 2020,  the final day of the COVID-19 period was originally set to be September 4, 2020.  The definition was amended on September 3, 2020 to extend the COVID-19 period to January 2, 2021.

O. Reg. 228/20  Subsection 1(2) – Interpretation and Application

1 (2)  Subsection 2 (2)  and sections 4 to 10 do not apply to an employee who is represented by a trade union.

Subsection 1(2) provides that certain provisions of O. Reg. 228/20 do not apply to employees who are represented by a trade union.

It does not matter for the purposes of ss.1(2) whether or not the unionized employees are covered by a collective agreement.  So long as the employees are represented by a trade union, the specified provisions do not apply to them.  If an employee is or was represented by a trade union for only part of the COVID-19 period (e.g. a trade union was certified to represent the employee on March 27, 2020) and the employee meets the conditions for the deemed leave and other specified provisions, the specified provisions will not apply to the employee during the time the employee is or was represented by the trade union but will apply during the rest of the COVID-19 period.

The provisions that do not apply to employees who are represented by a trade union are:

• ss.2(2),  4 and 5: these provisions create an entitlement to infectious disease emergency leave - and deem employees to be on the leave - when the employer temporarily reduces or temporarily eliminates an employee’s hours of work for reasons related to COVID-19 during the COVID-19 period.
• s. 6: provides that employees whose hours of work or wages are temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19 during the COVID-19 period are not considered to be laid off under the ESA.
• s. 7: provides that employees whose hours of work or wages are temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19 during the COVID-19 period are not considered to be constructively dismissed under the ESA.
• s. 8: deems certain complaints not to have been filed with the Ministry.
• s. 9: establishes when an employee’s hours of work or wages are considered to be reduced for the purposes of O. Reg. 228/20.
• s. 10: provides that, for greater certainty, O. Reg. 228/20 applies to assignment employees and provides that certain provisions apply with necessary modifications.

O. Reg. 228/20 Section 2 – Designated Diseases

2. (1) For the purposes of section 50.1 of the Act, the following diseases are designated as infectious diseases:

1. Diseases caused by a novel coronavirus, including Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and coronavirus (COVID-19).

(2) Despite subsection (1), the designation of coronavirus (COVID-19) as an infectious disease applies with respect to the reason prescribed in paragraph 1 of subsection 4 (1) only during the COVID-19 period.

Subsection 2(1) establishes which diseases are designated as infectious diseases for the purposes of infectious disease emergency leave in ESA Part XIV, s. 50.1.  It establishes that diseases caused by a novel coronavirus are designated as infectious diseases. The provision specifically names Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and coronavirus (COVID-19).  Note, however, that the list of diseases is an inclusive list.  This means that there may be other diseases caused by a novel coronavirus that are also designated as infectious diseases for the purposes of infectious disease emergency leave.

Subsection 2(2) says that despite ss.2(1), COVID-19 is designated as an infectious disease with respect to the reason prescribed in paragraph 1 of ss.4(1) (i.e. where an employer temporarily reduces or temporarily eliminates an employee’s hours of work for reasons related to the designated infectious disease) only during the COVID-19 period. 

The COVID-19 period is defined in s. 1 to start on March 1, 2020 and to end January 2, 2021.

Pursuant to ss.1(2) of O. Reg. 228/20, ss.2(2) does not apply to employees who are represented by a trade union.

Section 2  must be read subject to ss.3, 3.1(2) and 4(1.1) of O. Reg. 228/20, which establish start dates for the different reasons that create an entitlement to infectious disease emergency leave.  At the time of writing, coronavirus (COVID-19) was the only infectious disease for which there is a start date. This means that at the time of writing, even though there are additional diseases designated as infectious diseases per section 1, the only disease for which infectious disease emergency leave may be taken is coronavirus (COVID-19).

O. Reg. 228/20 Section 3 – Entitlement Start Date, Reasons Under the Act

3(1). Entitlement to emergency leave under clause 50.1 (1.1) (b) of the Act because of a reason set out in subclauses 50.1(1.1)(b)(i) to (vi) of the Act related to coronavirus (COVID-19) is deemed to have started on January 25, 2020.

ESA Part XIV, s. 50.1(5.1) provides that “An employee is entitled to take a leave under clause (1.1)(b) [infectious disease emergency leave] starting on the prescribed date.”   

Subsection 3(1) prescribes a start date for the entitlement to infectious disease emergency leave because of a reason related to coronavirus (COVID-19) set out in subclauses 50.1(1.1)(b)(i)-(vi) of the ESA. Pursuant to ss.3(1), the entitlement related to these reasons is deemed to have started on January 25, 2020. 

Different start dates are prescribed for other reasons giving rise to the entitlement:

• Subsection 3.1(2) prescribes a start date for the entitlement to infectious disease emergency leave that arises because of the prescribed reason in paragraph 1 of subsection 3.1(1) of O. Reg. 228/20 pursuant to subclause 50.1(1.1)(vii) – i.e. certain orders under the Emergency Management and Civil Protection Act that were continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, or any amendment to those orders, apply to the employee – see below for details.
• Subsection 4(1.1) prescribes a start date – and a specific period during which the entitlement applies – for the entitlement to infectious disease emergency leave that arises because of the prescribed reason in paragraph 1 of subsection 4(1) of O. Reg. 228/20 related to COVID-19 pursuant to subclause 50.1(1.1)(vii) - i.e. where an employer temporarily reduces or temporarily eliminates a non-unionized employee’s hours of work for reasons related to COVID-19) – see below for details.

Note that this regulation does not prescribe a start date for an entitlement to infectious disease emergency leave with respect to any of the other designated infectious diseases set out in O. Reg. 228/20, s. 2 (i.e., other diseases caused by a novel coronavirus, including Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS)).  As such, at the time of writing, employees are not entitled to take infectious disease emergency leave with respect to any of the other designated diseases; the entitlement arises pursuant to s. 3 only in respect of the coronavirus (COVID-19). 

Note that this regulation provides an entitlement to infectious disease emergency leave for a reason related to Coronavirus (COVID-19) that is:

• retroactive to January 25, 2020 if the leave was for a reason set out in subclauses (i)-(vi) of 50.1(1.1)(b) of the Act,
• retroactive to March 1, 2020 if the leave was for the reason prescribed in paragraph 1 of ss.4(1) of O.. Reg. 228/20 per subclause (vii) of s. 50.1(1.1)(b) of the Act, and
• retroactive to July 24, 2020 if the leave was for the reason prescribed in paragraph 1 of ss.3.1(1) of O. Reg. 228/20 per subclause (vii) of s. 50.1(1.1)(b) of the Act. 

This means that an employee could retroactively designate absences from work for a reason set out in subclauses (i)-(iv) of s. 50.1(1.1)(b) between January 25, 2020 and March 18, 2020 (prior to when the infectious disease regulation was first put in place) as infectious disease emergency leave if the employee met the required eligibility criteria (i.e., a reason listed in s. 50.1(1.1)(b)(i)-(vi)) for the leave at that time.  A retroactive leave of this nature raises a number of practical questions.  For more information, see the discussion in ESA Part XIV, s. 50.1.

It also means that an employee is retroactively deemed to have been on infectious disease emergency leave in respect of any time the employee does not perform the duties of his or her position because the employer temporarily reduced or eliminated the employee’s hours of work for COVID-19 related reasons from March 1, 2020 to May 28, 2020 (prior to O. Reg. 228/20 being filed). 

With respect to the reason prescribed in paragraph 1 of ss.3.1(1) of O. Reg. 228/20 (i.e., certain orders issued under the Emergency Management and Civil Protection Act that are continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 apply to the employee): although the regulation was amended August 24, 2020 to prescribe this reason and provide that the entitlement is retroactive to July 24, 2020, it was Program policy that employees in the situation described in the regulation were entitled to infectious disease emergency leave through clause (iii) of s. 50.1(1.1)(b) and that the amendment simply provides greater certainty that employees who are subject to such orders are entitled to the leave.

O. Reg. 228/20 Section 3.1 - Prescribed Leave, Orders Continued Under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020

3.1  (1)  For the purposes of subclause 50.1 (1.1) (b) (vii) of the Act, the following reason is prescribed:

1. An order made under section 7.0.2 of the Emergency Management and Civil Protection Act that is continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, or any amendment to such an order, that relates to the designated infectious disease applies to the employee.

3(2).  Entitlement to emergency leave under clause 50.1 (1.1) (b) of the Act because of the reason prescribed in paragraph 1 of subsection (1) related to coronavirus (COVID-19) is deemed to have started on July 24, 2020.

Clause 50.1(1.1)(b) of the ESA sets out the reasons for which an employee may take infectious disease emergency leave.  Subclause (vii) of that provision provides that additional reasons may be prescribed by regulation. 

Subsection 3.1(1) prescribes an additional reason that qualifies an employee for infectious disease emergency leave:  an order made under section 7.0.2 of the Emergency Management and Civil Protection Act (EMCPA)that is continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA), or any amendment to such an order, that relates to the designated infectious disease applies to the employee.

When the ROA came into force on July 24, 2020, some emergency orders that were initially made under section 7.0.2 of the EMCPA when the declared emergency for COVID-19 was in effect ceased to be EMCPA orders but were continued under the ROA.

As per s. 3.1 of O. Reg. 228/20, employees who are not performing their duties because any such orders apply to them are entitled to infectious disease emergency leave.

The Program considers an order to “appl[y] to” an employee only if the order is directed at the employee, i.e., where the employee, either individually or as part of a group, is the subject of the requirement, prohibition or other direction made in the order.

In other words, this condition is not satisfied if an employee is only indirectly affected by the order or by the consequences of someone else complying with the order.

For example, an order that requires restaurants to close “applies to” the owners of restaurants.  It does not apply to the employees of restaurants, even though they are affected by the closure.

At the time of writing,the orders referred to as “one employer” and “one location” orders (O. Reg. 158/20 – “Limiting Work to a Single Retirement Home”,  O. Reg. 146/20 – “Limiting Work to a Single Long-Term Care Home”, and O. Reg. 177/20 “Congregate Care Settings”)  are orders continued under the ROA that may entitle certain employees to infectious disease emergency leave under this provision.

As the ROA orders – including who they apply to - may be amended from time to time, s. 3.1 provides that an employee is eligible for infectious disease emergency leave pursuant to s. 3.1 only if the order applies to the employee at the relevant time.

The start date for the entitlement to infectious disease emergency leave for this prescribed reason is retroactive to July 24, 2020, as that is the date the ROA took effect, and the EMCPA orders ceased to be orders under the EMCPA and were continued under the ROA.

Prior to July 24, 2020 - when the emergency declaration was in place and the orders were EMCPA orders – it was Program policy that employees who were not performing the duties of their position because of a s. 7.0.2 EMCPA order that applied to them met the eligibility criteria for both declared emergency leave and infectious disease emergency leave. With respect to declared emergency leave, the Act explicitly referenced s. 7.0.2 EMCPA orders; with respect to infectious disease emergency leave it was Program policy that the entitlement arose based on subclause (iii) of s. 50.1(1.1)(b): these employees were considered to be subject to a control measure on the basis of a direction issued by the Government of Ontario.

It was similarly Program policy that employees who were not performing the duties of their position because of an EMCPA order that was continued under the ROA were eligible for infectious disease emergency leave based on subclause (iii) of s. 50.1(1.1)(b): these employees were considered to be subject to a control measure on the basis of a direction issued by the Government of Ontario.  From the Program’s perspective, this amendment provides greater certainty that employees in this situation are entitled to infectious disease emergency leave. As such, it is the Program’s view that employees’ entitlements have not changed as a result of the amendment. 

O. Reg. 228/20 Section 4 – Prescribed Leave, Deemed Leave

4(1).  For the purposes of subclause 50.1 (1.1) (b) (vii) of the Act, the following reason is prescribed:

1. The employee’s hours of work are temporarily reduced or eliminated by the employer for reasons related to the designated infectious disease.

4 (1.1).  Entitlement to emergency leave under clause 50.1 (1.1) (b) of the Act because of the reason prescribed in paragraph 1 of subsection (1) related to coronavirus (COVID-19) is deemed to have started on March 1, 2020, and applies during the COVID-19 period.

4(2).  An employee who does not perform the duties of his or her position because of the reason set out in paragraph 1 of subsection (1) is deemed to be on infectious disease emergency leave under section 50.1 of the Act in respect of any time during the COVID-19 period that the employee does not perform such duties because of that reason.

Pursuant to ss.1(2) of O. Reg. 228/20, s. 4 does not apply to employees who are represented by a trade union.

Clause 50.1(1.1)(b) of the ESA sets out the reasons for which an employee may take infectious disease emergency leave.  Subclause (vii) of that provision provides that additional reasons may be prescribed by regulation. 

Subsection 4(1) prescribes an additional reason that qualifies an employee for infectious disease emergency leave, ss.4(1.1) provides the start date for the entitlement and specifies the period during which the entitlement applies, and ss.4(2) deemsan employee who fits within that reason to be on the leave in respect of any time during the COVID-19 period (March 1, 2020 to January 2, 2021) the employee is not performing the duties of the employee’s position for that reason. 

These subsections must be read together with ss.50.1(1.1), which reads in part:

“An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position,

…

(b) because of one or more of the following reasons related to a designated infectious disease…”  [emphasis added]

Together, s. 4 of O. Reg. 228/20 and ss.50.1(1.1) of the ESA establish that where, from March 1, 2020 to the end of the COVID-19 period (as defined in s. 1 of O. Reg. 228/20), an employee who was not/is not be performing the duties of his or her position because the employee’s hours of work are temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19, is deemed to be on infectious disease emergency leave in respect of any time the employee is not performing his or her duties because of that reason. 

For example, for reasons related to COVID-19, an employer temporarily changes an employee’s schedule of 9 am–5 pm every weekday to 9 am–1 pm every weekday from April 1, 2020 to August 30, 2020. As per ss.4(2), this employee is deemed to be on infectious disease emergency leave every weekday from 1 pm to 5 pm from April 1, 2020 to August 30, 2020.  As per ss.4(3), all requirements and prohibitions that apply to Part XIV leaves (with the exceptions set out in ss.4(4)-(6)) apply to employees who are deemed to be on a leave under this provision.  (See the discussion of ss.4(4)-(6) below for details.)

It is Program policy that that the condition that the temporary reduction or temporary elimination of the employee’s hours by the employer “for reasons related to the designated infectious disease” will be met so long as at least one of the reasons for the temporary reduction or elimination was related to the designated infectious disease. 

For a discussion of the term “temporarily” in relation to a reduction or elimination, see the discussion under s. 6.  For a discussion of the terms “reduced or eliminated”, see the discussion under s. 9.

Note that it may be argued that there is some overlap between s. 4 of O. Reg. 228/20, which prescribes an additional reason for which employees are entitled to infectious disease emergency leave and also deems employees who meet this criteria to be on infectious disease emergency leave and clause (iv) of s. 51.1(1.1)(b), which provides that an employee is entitled to take infectious disease emergency leave where the employee is under a direction given by his or her employer to, for example, not attend work, in response to the employer’s concern that the employee may expose other individuals in the workplace to COVID-19.  Although it may be argued that s. 4(1) of O. Reg. 228/20 should apply to the situation where the employer temporarily reduced or eliminated an employee’s hours of work out of a concern that the employee may expose others in the workplace to COVID-19, it is Program policy that where employees are not performing the duties of their position because they are under a direction given by their employer in response to a concern of the employer that they may expose other individuals in the workplace to the designated infectious disease, the employee is eligible for infectious disease emergency leave under clause (iv) of s. 51.1(1.1)(b), rather than under s. 4(1) of O. Reg. 228/01.  

An employee is deemed to be on a leave only during the hours of work that the employee would have otherwise been working had the employer not temporarily reduced or temporarily eliminated the hours for reasons related to COVID-19. In other words, the deemed leave provisions do not give employees a right to a leave and to refuse hours/not attend work during hours the employer schedules them to work (and assert that they instead are deemed to be on leave for that time), solely because the employer has temporarily reduced the employee’s hours.  For example, take a situation where an employer, for reasons related to COVID-19, temporarily reduces an employee’s hours from March 15, 2020 to June 20, 2020 from eight hours a day Monday to Friday down to eight hours on Mondays only.  The employee is deemed to be on infectious disease emergency leave from Tuesday through Friday during this period. Does this employee have a right to be on infectious disease emergency leave on Mondays pursuant to s. 4(1), paragraph 1? 

The answer is no. As per s. 50.1(1.1) of the ESA, an employee is entitled to infectious disease emergency leave if the employee will not be performing the duties of his or her position because of one of the listed reasons.   Where the employee is scheduled to work, the listed reason in s. 4 of Reg 228/20 does not apply.  An employee who used to be scheduled to work every weekday and who is now only scheduled to work Mondays is not considered to not be performing the duties of his or her position on Mondays just because the employer reduced her hours the rest of the week. Employees have the right to be on infectious disease emergency leave only for as long as the event or condition that triggered the entitlement lasts.  After the triggering event is over or the condition is no longer present, the employee’s normal obligations to attend at work are resumed (assuming the employee does not have an entitlement to infectious disease emergency leave pursuant to a different eligibility criterion – or to another leave – on the Monday). This result is also made clear in the words of ss.4(2), which provide that the employee is deemed to be on the leave “in respect of any time … that the employee does not perform such duties because of that reason”.

Employers are not prohibited under the ESA from scheduling employees to be on vacation at times when the employee’s hours could – absent the vacation - have been temporarily reduced or eliminated for reasons related to COVID-19 and the employee - had he or she not been scheduled for vacation - could have been deemed to be on infectious disease emergency leave.  Note that this is different in the context of a leave that is not triggered by a deeming provision.  In the context of those leaves, the employer does not have the right to treat an employee’s leave absences as vacation (although it is open to the employee to agree to take the days as vacation days - subject to the ESA’s requirements applicable to some leaves that they be taken in single period or periods of at least one week).  In the deemed leave context, it is the employer whose actions trigger the conditions that result in the employee being deemed to be on the leave.  If the employer schedules an employee for vacation, the conditions necessary for the deemed leave will not be met and the employee who is scheduled to be on vacation will not trigger the deemed leave provision.

Section 4 must be read subject to s. 5 of O. Reg. 228/20, which provides that certain employees are not considered to be on infectious disease emergency leave.  See the discussion of s. 5 later in this chapter.

4(3).  Subject to subsections (4), (5) and (6), all requirements and prohibitions under the Act that apply in respect of a leave apply in respect of a leave that is deemed to be taken under subsection (2).

Subsection 4(3) provides that with the exceptions set out in ss.4(4) (re: the requirement to give notice to the employer of the leave), and ss.4(5) and 4(6) (re: benefit plan participation / contributions during the leave) all of the requirements and prohibitions that apply to Part XIV leaves apply equally to deemed leaves under ss.4(2) (e.g. the anti-reprisal protection, reinstatement obligation, and provisions re: continued accrual of seniority, length of employment and length of service credits). 

Issues may arise as to how the reinstatement obligation under s. 53 of the ESA applies where there have been layoffs and/or wage reductions in the workplace during a statutory leave.  This issue is addressed in the discussion of s. 53 of the Manual. 

4(4).  An employee who is deemed to be on leave under subsection (2) is exempt from the subsections 50.1 (2) and (3) of the Act.

Subsection 4(4) exempts employees who are deemed to be on infectious disease emergency leave pursuant to ss.4(2) of O. Reg. 288/20 from ss.50.1(2) and (3) of the ESA.

Subsection 50.1(2) of the ESA requires an employee who takes infectious disease emergency leave to advise his or her employer that he or she will be doing so.  Subsection 50.1(3) provides that if the employee begins the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it. 

Since an employee who is deemed to be on leave is on the leave because of the employer’s action there is nothing to be achieved in requiring the employee to give notice of the leave to the employer.  As such, ss.4(4) exempts an employee who is deemed to be on a leave pursuant to ss.4(2) from these notice requirements.

4(5). If an employee who is deemed to be on leave under subsection (2) stopped participating in any benefit plan described in subsection 51 (2) of the Act as of May 29, 2020, the employee is exempt from subsection 51 (1) during the COVID-19 period with respect to that benefit plan.

4(6). If an employer of an employee who is deemed to be on leave under subsection (2) was not, as of May 29, 2020, making the employer’s contributions for any benefit plan described in subsection 51 (2) of the Act that is related to the employee’s employment, the employer is exempt from subsection 51 (3) during the COVID-19 period with respect to that benefit plan.

Section 51 of the ESA provides that employees who are on a statutory leave continue to participate in certain benefit plans unless the employee elects in writing not to do so, and it requires employers to continue to make the employer’s contributions for any of those benefit plans unless the employee advises the employer in writing that the employee is not going to pay his or her contributions.  (See the discussion of s. 51 of the ESA for more information.)

Subsections 4(5) and (6) of O. Reg. 228/20 provide exemptions to those requirements in certain situations.

Subsection 4(5) provides that if an employee had stopped participating in a benefit plan described in subsection 51(2) of the ESA as of May 29, 2020 (the date O. Reg. 228/20 was filed), the employee does not have a statutory right to continue to participate in that particular benefit plan while on the deemed leave during the COVID-19 period. 

Similarly ss.4(6) exempts employers from the requirement in ss.51(2) of the ESA to continue making the employer contributions to a particular benefit plan described in ss.51(2) of the ESA while their employee is on a deemed leave during the COVID-19 period if the employer had already discontinued its contributions to that particular benefit plan before May 29, 2020 (the date O. Reg. 228/20 was filed).

The exemptions in ss.4(5) or (6) apply only with respect to benefit plans that are described in ss.51(2) of the ESA: pension plans, life insurance plans, accidental death plans, extended health plans, dental plans, and any prescribed type of benefit plan (of which there are none at the time of writing).  The exemptions do not apply with respect to plans that are not described in ss.51(2) but that employees are nonetheless entitled to participate in by virtue of O. Reg. 286/01, s. 10.  Section 10 of O. Reg. 286/01 provides that if employees on a leave other than a leave under Part XIV (e.g. educational leave) are entitled to participate in a benefit plan then employees on a Part XIV leave must also be entitled to participate in that plan.  The most significant types of plans that are not described in ss.51(2) are short-term and long-term disability plans.  Section 51 and the exemptions in ss.4(5) and (6) do not apply to such plans.  As such, if the employer’s plan provides short-term or long-term disability benefits to employees on leaves other than Part XIV leaves employees must be entitled to participate in those plans when they are deemed to be on infectious disease emergency leave.    

The exemptions in ss.4(5) and (6) only apply to employees who are deemed to be on infectious disease emergency leave.  If an employee is on infectious disease emergency leave pursuant to a different eligibility criterion – or on another statutory leave – the exemptions do not apply and s. 51 applies in its usual course.

4(7).  Nothing in this section or subsection 5(2) affects any payments or benefits the employee received from the employer during the period starting on March 1, 2020 and ending on May 29, 2020.

Subsection 4(7) states that nothing in section 4 (the “prescribed leave/deemed leave” provision) or ss.5(2) (which provides that certain employees who were given notice of termination are not considered to be on infectious disease emergency leave for the prescribed reason in s. 4 unless the employer and employee agree to withdraw the notice of termination) affects any payments or benefits the employee received from the employer during the period March 1, 2020 to May 29, 2020 (the date that O. Reg. 228/20 was filed).

This provision addresses questions that may arise because of the retroactive deeming of the leave (i.e. between March 1, 2020 and May 29, 2020, the date O. Reg. 228/20 was filed, when combined with s. 6, which provides that in certain circumstances employees are not considered to be laid off starting March 1, 2020 (see s. 6 below for details).  

For example, an employer temporarily eliminated an employee’s hours of work as of March 1, 2020 for reasons related to COVID-19, and the employee’s weekly earnings fell to $0. Because O. Reg. 228/20 was not yet filed, at that time the employee was considered to be on weeks of layoff under the ESA. The employer expected the elimination of hours to last for a significant amount of time and so continued to make substantial payments to the employee in order to extend the period of a temporary layoff per ss.56(2) from 13 weeks in any period of 20 consecutive weeks to 35 weeks in any period of 52 weeks.  O. Reg. 228/20 – which came into force only on May 29, 2020, after the employer had already made these payments  – retroactively provides that this employee is deemed to have been on infectious disease emergency leave and not to be considered to have been laid off during that time (see s. 6).  As such, the employer may have made certain payments or provided certain benefits to the employee prior to May 29, 2020 that it wouldn’t have otherwise done had the employee been deemed to have been on a leave, and not a layoff, at the time.

Subsection 4(7) provides that the retroactive deeming of that period of layoff as infectious disease emergency leave does not affect any payments that were made by the employer March 1, 2020 to May 29, 2020.  In other words, nothing about the retroactive application of s. 4 requires employees to pay these amounts back.  Note, however, that the ESA does not prohibit an employer from recovering the amounts of those payments through wage deductions under s. 13 if the employee provides written authorization to do so in writing in accordance with s. 13(3) of the ESA. 

O. Reg. 228/20 Section 5 – When Employee Not on Leave

5. (1) For greater certainty, an employee whose employment is,

(a) terminated under clause 56 (1) (a) of the Act or severed under clause 63 (1) (a), (d) or (e) of the Act on or after March 1, 2020; or

(b) terminated under clause 56 (1) (b) or (c) of the Act or severed under clause 63 (1) (b) or (c) of the Act before May 29, 2020,

shall not be considered to be on infectious disease emergency leave for the reason set out in paragraph 1 of subsection 4 (1).

(2) An employee who has been given written notice of termination in accordance with section 57 or 58 of the Act shall not be considered to be on infectious disease emergency leave for the reason set out in paragraph 1 of subsection 4 (1) unless the employer and employee agree to withdraw the notice of termination.

Pursuant to ss.1(2) of O. Reg. 228/20, s. 5 does not apply to employees who are represented by a trade union.

Subsection 5(1)

O. Reg. 228/20 does not prevent employers from terminating or severing their employees’ employment by dismissing them or refusing/being unable to continue employing them during the COVID-19 period and nothing about the regulation’s retroactive application resurrects employment relationships that were already terminated or severed before the regulation was filed.  Employees in these situations are not deemed to be on infectious disease emergency leave.

Subsection 5(1) simply reinforces that outcome by providing that for greater certainty:

• Clause (a): an employee whose employment is terminated under s. 56(1)(a) or severed under s. 63(1)(a), (d) or (e) any time on or after March 1, 2020 (the first day an employee can be deemed to be on infectious disease emergency leave under this regulation) will not, from the date of the termination or severance, be considered to be on the leave.

• Clause (b): an employee whose employment was terminated and/or severed before May 29, 2020 (the date the regulation was filed) as the result of a constructive dismissal and subsequent resignation by the employee in response will not be considered to have been on infectious disease emergency leave for the prescribed reason prior to the termination or severance even if the conditions in the prescribed reason were present. 

This provision clarifies that a pre-May 29, 2020 termination that resulted from a constructive dismissal and subsequent resignation that was based on the employer unilaterally temporarily reducing or eliminating an employee’s hours of work or wages for reasons related to COVID-19 during the defined COVID-19 period isn’t “undone” by retroactively deeming that reduction or elimination to be a leave.

Note that this provision applies if the termination or severance resulting from a constructive dismissal happened before May 29, 2020, not the constructive dismissal itself. (To be a termination or severance resulting from a constructive dismissal under the ESA, there must be a constructive dismissal and the employee must resign in response to the constructive dismissal within a reasonable period of time.  In other words, this provision applies only if the employee who was constructively dismissed resigned in response to that constructive dismissal prior to May 29, 2020.) 

Subsection 5(2)

Subsection 5(2) states that an employee whose employer gave him or her written notice of termination in accordance with s. 57 or s. 58 of the ESA is not deemed to be on infectious disease emergency leave, even if the relevant criteria are met, unless the employer and employee agree in writing to withdraw the notice of termination before the termination crystallized.  (An employer may wish to withdraw notices of termination where, for example, it provided them in anticipation of a layoff exceeding the length of a temporary layoff under the ESA before O. Reg. 228/20 was filed and the rules of temporary layoff were altered.)

Notice of termination, once given, generally cannot be withdrawn unless the employee consents to the withdrawal – see she discussion of this issue in s. 56 of the Manual for details.

If the notice of termination is withdrawn, the rules with respect to the application of the deemed leave provision apply as per usual from the date of the withdrawal forward. 

(Note: if the criteria for being on a deemed leave were met before the employee received written notice of termination – i.e. there was a COVID-19 related reduction or elimination before notice of termination was given and the reduction or elimination was intended at the time only to be temporary - the employee would be deemed to be on infectious disease emergency leave with respect to that time.)

As per ss.4(7) of O. Reg. 228/20, ss.5(2) does not affect any payments that were made by the employer from March 1, 2020 to May 29, 2020.  For example, as required by s. 60 of the ESA, an employer who provided notice of termination paid its employees their regular wages during the notice period even though the employees were not working.  Subsection 4(7) provides that ss.5(2) does not affect those payments and does not require the employee to pay those amounts back to the employer even if the employer and employee agree to withdraw the notice of termination.

O. Reg. 228/20 Section 6 – Reduction in Hours, Wages Not a Layoff

6(1)  An employee whose hours of work are temporarily reduced or eliminated by the employer, or whose wages are temporarily reduced by the employer, for reasons related to the designated infectious disease during the COVID-19 period is exempt from the application of sections 56 and 63 of the Act for the purposes of determining whether the employee has been laid off, and the employee shall not be considered to be laid off under those sections, other than under clause 63 (1) (d) of the Act.

Pursuant to subsection 1(2) of this regulation, section 6 does not apply to an employee who is represented by a trade union.

Subsection 6(1) states that where an employee’s wages are temporarily reduced and/or hours of work are temporarily reduced or temporarily eliminated by the employer during the defined “COVID-19 period” for reasons related to COVID-19, the employee is not considered to be laid off for the purposes of sections 56 and 63 of the ESA (other than clause 63(1)(d)) and the employee is exempt from the application of sections 56 and 63 for the purposes of determining whether the employee has been laid off. 

The effect of this provision is to “freeze” the temporary layoff clock from ticking as of March 1, 2020 and for the duration of the COVID-19 period where the prescribed conditions are met.  In other words, the provision stops specified weeks from being counted as a week of layoff.  Only the numerator in the 13/20 or 35/52 thresholds is affected. The provision does not freeze or otherwise affect the denominator in the “count”, i.e. the 20- or 52-week rolling periods.  As such, for an employee to whom this provision applies, a termination of employment cannot be triggered during the defined COVID-19 period by virtue of s. 56(1)(c), nor can a severance of employment be triggered by virtue of s. 63(1)(c) by way of a layoff exceeding the length of a temporary layoff.

Note that subsection (2) clarifies that where an employee was terminated pursuant to clause 56(1)(c) or severed under clause 63(1)(c) prior to May 29, 2020 (the date O. Reg. 228/20 was filed), this provision does not apply to that employee. 

The following discussion will look at each of the five conditions that must be present for this provision to apply:

1. The employee is subject to a reduction or elimination in hours of work and/or wages

This provision specifies that it applies to reductions or eliminations in the following situations: it applies where “hours of work are temporarily reduced or eliminated” and where “wages are temporarily reduced”. The Program views this condition as being met if the employee experiences a reduction or an elimination in either hours of work or Wages.  In other words, though not explicitly stated, the provision is interpreted to include the elimination of Wages.  As such, an employee will meet this condition if the employee is subject to any of the following: a reduction in hours of work, a reduction in wages, or an elimination in hours of work and an elimination in Wages.   All other ESA rules, such as the obligation to comply with the minimum wage requirements where work is performed, continue to apply as usual.

Section 9 of the regulation establishes specific rules to be used in determining whether hours and/or wages have been reduced for the purposes of the regulation.  Subsection 9(1), read in conjunction with ss.9(3) and (4), establishes what is a reduction in hours of work for the purpose of this provision.  Subsection 9(2), read in conjunction with ss.9(3) and (4), establishes what is a reduction in wages for the purpose of this provision.  Please see the discussion of section 9 for more information.

2. The reduction or elimination of hours of work and/or wages must be temporary

3. It must be the employer that temporarily reduces or eliminates the employee’s hours of work and/or wages

The temporary reduction or elimination of the employee’s hours of work and/or wages must be initiated by the employer for section 6 to apply.  In other words, if the employee works fewer hours for a reason that is initiated or brought about by the employee – for example, if the employee was away from work because the employee elected to take a statutory leave of absence such as sick leave or family responsibility leave, or requested personal time away from work – this provision does not apply. 

Note that in a situation where the employer gives the employee an ultimatum between accepting a reduction in hours and/or wages or termination, if the employee “chooses” the reduction in hours and/or wages, the Program considers this change to have been initiated by the employer and not the employee.

4. The temporary reduction or elimination of the employee’s hours of work and/or wages must have occurred for reasons related to the designated infectious disease

This condition is met where the employer’s decision to temporarily reduce or temporarily eliminate an employee’s hours of work and/or wages is made in whole or in part for reasons related to the designated infectious disease.  The designated infectious disease referenced here is COVID-19, pursuant to section 2. 

In some cases, there will be more than one reason an employer temporarily reduces or temporarily eliminates an employee’s hours or Wages.  As long as one of the reasons is related to the COVID-19, this condition is met.  The reason for the reduction or elimination can be directly related to COVID-19 or it can be indirect.  Examples of reasons related to COVID-19 include: an employer’s business was ordered to suspend operations by order under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (or by an emergency order under the Emergency Management and Civil Protection Act before the declared emergency for COVID-19 was terminated on July 24, 2020); a brewer reduced its employees’ hours because the demand for beer was reduced since restaurants and pubs had been ordered pursuant to an order to close temporarily; a private children’s bus line eliminated some of its employees’ hours because schools were closed; a party supply business reduced its employees’ wages due to reduced revenue resulting from a lack of demand for party supplies when physical distancing rules were in effect.

Subsection 1(1) of this regulation defines the “COVID-19 period”.  The COVID-19 period is March 1, 2020 to January 2, 2021.  .

Only where the four conditions discussed above occur during the defined COVID-19 period does section 6 to apply.  For example, it could be that an employee’s hours of work were temporarily reduced by the employer for reasons related to COVID-19 beginning on February 23, 2020 and ending on June 1, 2020.  In that case, section 6 applies only to the reduction in hours that occurred from March 1, 2020 to June 1, 2020; the reduction in hours that occurred prior to March 1, 2020 (i.e. from February 23, 2020 to February 29, 2020) is unaffected by O. Reg. 228/20.

Where the conditions are met

Where all five of these conditions are met, the employee is exempt from the application of sections 56 and 63 of the Act for the purposes of determining whether the employee has been laid off.  The employee is not considered to be laid off under section 56 or section 63, with the exception of clause 63(1)(d).  (Clause 63(1)(d) provides that an employee’s employment is severed where the employer lays off an employee due to a permanent discontinuance of all of the employer’s business at an establishment.)

The effect of this provision is to “freeze” the temporary layoff clock from ticking from March 1, 2020 to January 2, 2021 where the prescribed conditions are met.  In other words, the provision stops specified weeks from being counted as a week of layoff.  Only the numerator in the 13/20 or 35/52 thresholds is affected. The provision does not freeze or otherwise affect the denominator in the “count”, i.e. the 20- or 52-week rolling periods.  As such, for an employee to whom this provision applies, a termination of employment cannot be triggered during the defined COVID-19 period by virtue of s. 56(1)(c), nor can a severance of employment be triggered by virtue of s. 63(1)(c) by way of a layoff exceeding the length of a temporary layoff.

Note, however, that there may be situations where a reduction or elimination in hours and/or wages starts out as a reduction to which section 6 applies – and therefore to which a layoff under sections 56 and 63 do not apply - but the circumstances change partway through such that the five conditions in section 6 are no longer met.  At the point in time where any one of the conditions is no longer met, section 6 stops applying and the rules set out in section 56 and 63 resume their application. 

For example, say the employee’s hours of work were temporarily eliminated due to the closure of a business resulting from an order issued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (or under the Emergency Management and Civil Protection Act before the declared emergency for COVID-19 was terminated on July 24, 2020).  The elimination of hours originally falls within purview of section 6.  If, for example, at a particular point in time, the business is no longer viable and, as such, it becomes clear to the employer that there is no longer a possibility of the employee’s hours of work being reinstated, the reduction in hours is no longer “temporary” and so this provision no longer applies.  As of that point in time, the exemption no longer applies and sections 56 and 63 resume application.

6(2).  Subsection (1) does not apply to an employee whose employment was terminated under clause 56 (1) (c) of the Act or severed under clause 63 (1) (c) of the Act before May 29, 2020.

Subsection 6(2) clarifies that where an employee was terminated under clause 56(1)(c) or severed under clause 63(1)(c) prior to May 29, 2020 (the date O. Reg. 228/20 was filed), this provision does not apply to that employee.  In other words, where an employee was on a temporary layoff that lasted longer than the period of temporary layoff, and which consequently resulted in the termination or severance of the employee’s employment before May 29, 2020, the employee is not affected by this provision. The employment relationship is not resurrected by the regulation.

O. Reg. 228/20 Section 7 – Reduction in Hours, Wages Not a Constructive Dismissal

(1) The following does not constitute constructive dismissal if it occurred during the COVID-19 period:

1. A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to the designated infectious disease.

2. A temporary reduction in an employee’s wages by the employer for reasons related to the designated infectious disease.

Pursuant to subsection 1(2) of this regulation, section 7 does not apply to an employee who is represented by a trade union.

This provision establishes that where, during the defined “COVID-19 period” an employee’s hours of work or wages are temporarily reduced or eliminated by the employer for reasons related in whole or in part to COVID-19, the change does not constitute constructive dismissal for the purposes of the ESA.  As such, since an employee who is in this situation is not constructively dismissed for the purposes of the ESA, a termination of employment will not be triggered in these circumstances by virtue of s. 56(1)(b), nor will a severance of employment be triggered by virtue of s. 63(1)(b). 

Note that subsection (2) clarifies that where an employee was terminated under clause 56(1)(b) or severed under clause 63(1)(b) prior to May 29, 2020, this provision does not apply to that employee.

The following discussion will look at each of the five conditions that must be present for this provision to apply:

1. The employee is subject to a reduction or elimination in hours of work and/or wages

This provision states that it applies to reductions or eliminations in the following situations: it applies where “hours of work are temporarily reduced or eliminated” and where “wages are temporarily reduced”. The Program views this condition as being met if the employee experiences a reduction or an elimination in either hours of work or Wages.  In other words, though not explicitly stated, the provision is interpreted to include the elimination of wages where there has been an elimination of hours.  As such, an employee will meet this condition if the employee is subject to any of the following: a reduction in hours of work, a reduction in wages, an elimination in hours of work or a corresponding elimination in Wages. 

Section 9 of the regulation establishes specific rules to be used in determining whether hours and/or wages have been reduced for the purposes of the regulation.  Subsection 9(1), read in conjunction with ss.9(3) and (4), establish what is a reduction in hours of work for the purpose of this provision.  Subsection 9(2), read in conjunction with ss.9(3) and (4), establish what is a reduction in wages for the purpose of this provision.  Please see the discussion of section 9 for more information.

2. The reduction or elimination of hours of work and/or wages must be temporary

This condition is met only where the employee is subject to a temporary reduction or a temporary elimination in hours of work or Wages.  The condition is not met if the reduction or elimination is a permanent change.

Determining whether a reduction or elimination of hours of work or wages is temporary or permanent is a question of fact that can only be answered on a case-by-case basis taking all relevant facts into consideration.  Note, however, that key elements in this assessment are the employer’s intention and the parties’ understanding at the time the change was made.  Did the employer intend for the change to be temporary or did the employer instead intend to initiate a permanent change to the terms and conditions of the employee’s employment?  What was the employee’s understanding of the change?  If the change was intended to be a permanent change, this condition would not be met and subsection 7(1) would therefore not apply to the employee.

Given the climate of economic uncertainty brought about by COVID-19, it is possible that an employer may, at the time the change is made, be unsure whether the reduction or elimination of an employee’s hours of work and/or wages will be temporary or permanent.  It may be that the employer is taking a “wait and see” approach to its ability to maintain employment relationships and to return terms and conditions of employment to their pre-COVID-19 period state.  These outcomes may depend on factors such as when the business is permitted to reopen, demand for the employer’s products during the pandemic, production capacity while maintaining physical distancing for employees etc.  The Program takes the view that, in this type of situation, the employer is generally considered to have intended the change to be temporary, unless there is evidence to the contrary.

3. It must be the employer that temporarily reduces or eliminates the employee’s hours of work and/or wages

The temporary reduction or elimination of the employee’s hours of work and/or wages must be initiated by the employer for subsection 7(1) to apply.  In other words, if the employee works fewer hours for a reason that is initiated or brought about by the employee – for example, if the employee was away from work because the employee elected to take a statutory leave of absence such as sick leave or family responsibility leave or requested personal time away from work – this provision does not apply. 

Note that in a situation where the employer gives the employee an ultimatum between accepting a reduction in hours and/or wages or termination, if the employee “chooses” the reduction in hours and/or wages, the Program considers this change to have been initiated by the employer and not the employee.

4. The temporary reduction or elimination of the employee’s hours of work and/or wages must have occurred for reasons related to the designated infectious disease

This condition is met where the employer’s decision to temporarily reduce or temporarily eliminate an employee’s hours of work/wages is made in whole or in part for reasons related to the designated infectious disease.  The designated infectious disease referenced here is COVID-19, pursuant to section 2. 

In some cases, there will be more than one reason an employer temporarily reduces or temporarily eliminates an employee’s hours or Wages.  As long as one of the reasons is related to the COVID-19, this condition is met.  The reason for the reduction or elimination can be directly related to COVID-19 or it can be indirect.  Examples of reasons related to COVID-19 include: an employer’s business was ordered to suspend operations by order under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (or by an emergency order under the Emergency Management and Civil Protection Act before the declared emergency for COVID-19 was terminated on July 24, 2020); a brewer reduced its employees’ hours because the demand for beer was reduced since restaurants and pubs had been ordered pursuant to an emergency order to close temporarily; a private children’s bus line eliminated some of its employees’ hours because schools were closed;  a party supply business reduced its employees’ wages due to reduced revenue resulting from a lack of demand for party supplies when physical distancing rules were in effect.

5. The above four conditions must occur during the defined COVID-19 period

Subsection 1(1) of this regulation defines the “COVID-19 period”.  The “COVID-19 period” is March 1, 2020 to January 2, 2021.

Subsection 7(1) applies only where all four of the conditions discussed above occur during the defined COVID-19 period. 

(Note, however, this condition must be read subject to subsection 2 that provides that where a temporary reduction or elimination in hours of work or wages occurred prior to May 29, 2020 – even ones brought about by the employer for reasons related to COVID-19 that occurred during the COVID-19 period – if the change resulted in a constructive dismissal and the employee resigned from his or her employment in response to the change within a reasonable period of time and the resignation occurred prior to May 29, 2020, a claim relating to this constructive dismissal can be filed with the Ministry of Labour, Training and Skills Development investigated, and may result in a finding that the employee was terminated pursuant to ss.56(1)(b). See the discussion of ss.7(2) and  s. 8 for more details.)

Where the conditions are met

Where the conditions are met, the temporary reduction or elimination of the employee’s hours of work or wages by the employer for reasons related to COVID-19 during the COVID-19 period does not constitute constructive dismissal for the purposes of the ESA.

Since an employee who is in this situation is not constructively dismissed for the purposes of the ESA, a termination of employment will not be triggered in these circumstances by virtue of s. 56(1)(b), nor will a severance of employment be triggered by virtue of s. 63(1)(b).  Without subsection 7, a unilateral reduction in hours of work or wages might otherwise amount to a constructive dismissal if the reduction was significant enough, and it would create termination and severance pay obligations if the employee resigned in response within a reasonable period of time.

Note that this provision addresses constructive dismissal only under the ESA.  The provision does not address what constitutes a constructive dismissal at common law.

7(2) Subsection (1) does not apply to an employee whose employment was terminated under clause 56 (1) (b) of the Act or severed under clause 63 (1) (b) of the Act before May 29, 2020.

This provision took effect when O. Reg. 228/20 was filed on May 29, 2020.

Subsection 7(2) clarifies that where an employee was terminated under clause 56(1)(b) or severed under clause 63(1)(b) prior to May 29, 2020, this provision does not apply to that employee.

Note that in order to be terminated under clause 56(1)(b) or severed under clause 63(1)(b), the employee must have been constructively dismissed and must have resigned from his or her employment in response employer’s actions within a reasonable period.  It is only where both the constructive dismissal and the employee’s resignation occurred prior to May 29, 2020 that the employee is not affected by subsection 7(1).  If an employee was constructively dismissed by his or her employer and the employee resigned in response to the employer’s actions after May 29, 2020, subsection 7(1) applies. 

Note that nothing in section 7 affects a constructive dismissal that arises for reasons other than the employer temporarily reducing or eliminating an employee’s hours of work or wages for reasons related to COVID-19 during the defined COVID-19 period.  If, for example, an employee was constructively dismissed during the defined COVID-19 period as the result of changes to the employee’s wages or hours for reasons wholly unrelated to COVID-19, or if the change that results in a constructive dismissal is made for a COVID-related reason but relates to something other than hours of work or wages – such as a significant change in the employee’s work location or a significant reduction in the employee’s job responsibilities etc. – the employee may be found to be terminated and/or severed per the usual application of s. 56(1)(b) and/or s. 63(1)(b).

O. Reg. 228/20 Section 8 – Complaint Deemed Not to Have Been Filed

8. (1) A complaint filed with the Ministry that a temporary reduction or elimination of an employee’s hours of work by the employer or a temporary reduction in an employee’s wages by the employer constitutes the termination or severance of the employee’s employment shall be deemed not to have been filed if the temporary reduction or elimination of hours or the temporary reduction in wages occurred during the COVID-19 period for reasons related to the designated infectious disease.

(2) Subsection (1) does not apply if the employee’s complaint relates to,

(a) a termination under clause 56 (1) (a) of the Act or a severance under clause 63 (1) (a), (d) or (e) of the Act; or

(b) a termination under clause 56 (1) (b) or (c) of the Act or a severance under clause 63 (1) (b) or (c) of the Act before May 29, 2020.

Subsection 8(1) provides that certain complaints regarding termination and/or severance filed with the Ministry of Labour, Training and Skills Development are deemed not to have been filed. By deeming the complaint not to have been filed, employees who filed the complaint are not prohibited by s. 97 of the ESA from commencing a civil proceeding regarding their termination and/or severance entitlements. For example, an employee could choose to pursue wrongful dismissal litigation in the courts.    

Pursuant to ss.1(2) of O. Reg. 228/20, s. 8 does not apply to employees who are represented by a trade union.

In general terms, this provision applies to claims for termination pay and/or severance pay that are based on a constructive dismissal or on a layoff that exceeded the period of a temporary layoff if the foundation for the constructive dismissal or layoff was a temporary reduction or temporary elimination of wages or hours of work for reasons related to COVID-19 during the COVID-19 period.  

Specifically, complaints are deemed not to have been filed if the complaint is with respect to termination and/or severance and the foundation of the complaint meets all of these conditions:

• the employee’s wages or hours of work were temporarily reduced or temporarily eliminated by the employer,
• the temporary reduction or temporary elimination was for reasons related in whole or in part to COVID-19, and
• the temporary reduction or temporary elimination occurred during the COVID-19 period, which is defined in s. 1 of O. Reg. 228/20 to be March 1, 2020 to January 2, 2021.

Subsection 8(1) applies equally whether the employee specifically raised the disallowed allegations in the claim form, or whether the issue arose during the course of an investigation. 

The deeming provision applies only to the portion of the claim relating to the disallowed termination and/or severance allegation.  If the claim contains allegations that are not disallowed per ss.8(1), those other allegations are investigated in the usual course.  

For example, if a claim was made for termination pay and it was based on a temporary reduction or temporary elimination of wages or hours of work by the employer that was for reasons related in whole or in part to COVID-19 from February 1, 2020 to April 30, 2020, the claim would proceed for investigation as per usual with respect to the reduction or elimination that occurred in February, i.e. prior to the March 1, 2020 beginning of the COVID-19 period.

Another example relates to reprisal allegations. Even if a reprisal allegation arises from a temporary reduction or temporary elimination in hours of work or wages that are related to COVID-19 during the COVID-19 period, that allegation will be investigated as per usual.  Take a situation where a claimant alleges that an employer who had to eliminate the hours of 20% of its workforce because of COVID-19 during the COVID-19 period selected the claimant in part because he had taken a statutory leave or exercised another ESA right.  The reprisal allegation would be investigated as per usual.

Employment Standards Officers address the question as to whether there are disallowed allegations at the outset of an investigation. A claim that is deemed not to have been filed does not trigger the application of s. 97 of the ESA..

Subsection 8(1) must be read in conjunction with ss.8(2), which provides that ss.8(1) doesn’t apply if the employee’s complaint relates to:

• a termination under clause 56(1)(a) of the Act or a severance under clause 63(1)(a) of the Act, (i.e. where an employer dismisses the employee or otherwise refuses or is unable to continue employing the employee) or a severance under clause 63(1)(d) or (e), (i.e. where the severance of employment is because of a permanent discontinuance of all of the employer’s business at an establishment or because the employee gave written notice of resignation during the statutory notice period where certain conditions were met.)

Claims for termination or severance pay based on these kinds of terminations or severances are not disallowed pursuant to ss.8(1) and are investigated as per usual.

Such claims are allowed even if the reason for the termination or severance was related to COVID-19 (e.g. the employer permanently closed its business because of COVID-19 and the employee claims the employer did not provide the required notice of termination or pay in lieu).

This provision, while not strictly necessary since terminations and severances under clause 56(1)(a) of the Act or a severance under clause 63(1)(a), (d) and (e) of the Act are permanent and therefore do not fall within the condition in ss.8(1) that the changes be “temporary”, clarifies that claims filed with the Ministry for termination and/or severance pay based on this kind of termination and/or severance are not disallowed.

• a termination under clause 56(1)(b) or (c) or a severance under section 63(1)(b) or (c) that occurred before May 29, 2020 (the date O. Reg. 228/20 was filed).

Clause (b) creates an exception to the “deemed not filed” rule in ss.8(1). 

It allows claims to be filed and investigated where the termination or severance resulting from a layoff or constructive dismissal crystallized before the law was changed by O. Reg. 228/20.   

Specifically, it provides that claims for termination or severance pay that are based on a layoff exceeding the period of a temporary layoff or on a constructive dismissal are not disallowed pursuant to ss.8(1) and therefore are investigated as per usual if they occurred before May 29, 2020 (the date O. Reg. 228/20 was filed). 

Such claims are allowed even if the reason for the layoff or constructive dismissal was COVID-19 related and even if the termination or severance occurred during the defined COVID-19 period.

With respect to terminations or severances resulting from a constructive dismissal, note that the termination and severance occur on the date that the employee resigns in response to the constructive dismissal, not on the date the constructive dismissal occurred. 

Although ss.8(1) states that certain claims are disallowed if they are based on a situation where an employee’s “hours of work are temporarily reduced or eliminated” or where “wages are temporarily reduced” the Program’s position is that this provision also applies to disallow a claim if the allegation is based on a temporary elimination of wages for reasons related to COVID-19 during the COVID-19 period. 

Some might argue that the inclusion of the phrase “wages are temporarily reduced” without also including “wages are temporarily eliminated” means that a claim based on the temporary elimination of wages is not disallowed. The Program’s position is that the reference to an elimination in hours of work also captures the situation where there has been a corresponding elimination in employees’ wages resulting from the eliminated hours, and as such, claims based on the temporary elimination of wages are disallowed by the phrase “hours of work are temporarily … eliminated”.  The phrase “wages are temporarily reduced” captures a scenario where an employee’s wages were temporarily reduced where there was no corresponding reduction in the employee’s hours, i.e. where an employee’s wage rate was reduced. 

O. Reg. 228/20 Section 9 – Reduction in Hours of Work, Wages

Pursuant to subsection 1(2) of this regulation, section 9 does not apply to an employee who is represented by a trade union.

The provision sets out formulas to be used in establishing whether an employee’s hours of work and/or wages are considered to have been reduced for the purposes of the regulation.  In general terms, the formulas are based on comparing the employee’s hours of work and/or wages during the COVID-19 period to the employee’s hours of work and/or wages during a period of time before the effects of COVID-19 were felt in most workplaces. 

9 (1) For the purposes of this Regulation, an employee’s hours of work are considered to be reduced as follows:

1. If the employee has a regular work week, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than they worked in the last regular work week before March 1, 2020.

2. If the employee does not have a regular work week, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than the average number of hours they worked per work week in the period of 12 consecutive work weeks that preceded March 1, 2020.

3. If the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than they worked in the work week in which they worked the greatest number of hours.

Reduction in Hours of Work

Subsection 9(1), read in conjunction with ss.9(3) and (4), establish when an employee’s hours of work are considered to have been reduced for the purposes of the regulation. 

Assessing whether an employee’s hours of work have been reduced is relevant in the application of the following provisions:

• Section 4: an employee is deemed to be on a leave if the employee’s hours of work have been temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19 during the defined COVID-19 period. 
• Section 6: an employee is not considered to be on a temporary layoff for the purposes of sections 56 and 63 if the employer has temporarily reduced or temporarily eliminated the employee’s hours of work for reasons related to COVID-19 during the defined COVID-19 period.
• Section 7: a temporary reduction or temporary elimination of hours by the employer for reasons related to COVID-19 during the defined COVID-19 period does not constitute constructive dismissal for the purposes of the ESA. 
• Section 8: complaints filed with the Ministry that a temporary reduction or elimination of an employee’s hours of work by the employer constitutes the termination or severance of the employee’s employment are deemed not to have been filed if the temporary reduction or elimination occurred during the COVID-19 period for reasons related to COVID-19.

The provision establishes different formulas that apply depending on which of three categories the employee falls into: the employee has a regular work week, the employee does not have a regular work week, or, regardless of whether or not the employee has a regular work week, the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020.  Each of these categories are discussed below:

• Employee has a regular work week

If the employee has a regular work week, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than the employee worked in the last regular work week before March 1, 2020.  (Note that if the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee falls into category 3.) 

However, per ss.9(3), if the employee was on vacation, not able to work, not available for work, subject to a disciplinary suspension or was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere for any part of the last work week before March 1, 2020, then the work week to be applied is, instead, the last regular work week before March 1, 2020 in which such conditions did not apply for any part of the work week.

This formula therefore involves comparing the number of hours the employee worked in the last regular work week before March 1, 2020 during which none of the scenarios set out in subsection 9(3) occurred, to the work week in question.

Work week is defined in s. 1 of the ESA as follows:

"Work week" means,

(a)  a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or

(b)  if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday.

In order to determine what is the last regular work week before March 1, 2020, it is necessary to first establish the work week that includes March 1, 2020.  From there, look back one full work week.  This will be the last full work that occurred prior to March 1, 2020.  If none of the scenarios set out in subsection (3) apply for any part of the work week, then then this is the work week used in the comparison.  However, if, during that work week, any of the scenarios set out in subsection 9(3) applied for any period of time, then it is necessary to continue to look back work week by work week to find the first work week in which none of the scenarios set out in subsection 9(3) are present.

Once the comparator work week is established, the number of hours the employee worked in that work week is compared to the number of hours the employee worked in the work week in question (i.e. the work week during the COVID-19 period).  If the employee worked more hours in the pre-March 1, 2020 “comparator week” as compared to the work week in question, then the employee is considered to have had a reduction in his or her hours of work for the purposes of sections 4, 6, 7 and 8.

For example, assume that in applying this formula, the employee has a comparator work week of 40 hours. If during the COVID-19 period, the employee works anything less than 40 hours in a given work week, then there will have been a reduction for the purposes of sections 4, 6, 7 and 8 of the regulation.

2. Employee does not have a regular work week

If the employee does not have a regular work week, the employee’s hours of work are considered to be reduced if the employee works fewer hours in the work week than the average number of hours the employee worked per work week in the period of 12 consecutive work weeks that preceded March 1, 2020.    (Note: if the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee falls into category 3.)

However, per ss.9(4), if the employee was not employed, was on vacation, was not able to work, was not available for work, was subject to a disciplinary suspension or was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere for any part of a work week in the 12-week period referred to in those paragraphs, then that work week is excluded for the purposes of the averaging.

This formula therefore involves comparing the average number of hours the employee worked in the 12 consecutive work weeks prior to March 1, 2020 (or lesser number of averaged weeks if there are any excluded weeks pursuant to ss.9(4)) to the number of hours the employee worked in the work week in question during the COVID-19 period.

Work week is defined in s. 1 of the ESA as follows:

"Work week" means,

(a)  a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or

(b)  if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday.

In order to establish the period of 12 consecutive work weeks that preceded March 1, 2020, it is necessary to first establish the work week that includes March 1, 2020.  From there, look back 12 work weeks.

Next, determine if during any of those 12 work weeks, any of the scenarios set out in subsection (4) apply for any period of time.  If any of the scenarios apply during a work week, that work week is excluded from the averaging calculation, meaning the average is calculated over a period shorter than 12 weeks.  For example, if the only condition that applied during the 12-week timeframe was that the employee was on vacation for one week or a part of a week, the average of the remaining 11 weeks would be calculated.

Once the comparator average is established, the next step is to determine the number of hours the employee worked during the work week in question (i.e. the work week during the COVID-19 period).  If the average number of hours of work determined pursuant to subsection 9(2) amounts to more hours than the employee worked in the work week in question, then the employee is considered to have a reduction in his or her hours of work for the purposes of sections 4, 6, 7 and 8.

3.  Employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020

If the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, then the employee’s hours of work are considered to be reduced if the employee worked fewer hours in the work week in question than the employee worked in the work week in which he or she worked the greatest number of hours. This formula applies regardless of whether or not the employee has a regular work week.

Where an employee falls into this category, a comparison is made between the work week in which the employee worked the greatest number of hours - regardless of when that occurred during the employment relationship - and the number of hours the employee worked during the work week in question during the COVID-19 period.

If the employee worked more hours during any previous work week than he or she worked in the work week in question, then the employee is considered to have a reduction in his or her hours of work for the purposes of sections 4, 6, 7 and 8.

9(2) For the purposes of this Regulation, an employee’s wages are considered to be reduced as follows:

1. If the employee has a regular work week, the employee’s wages are considered to be reduced if the employee earns less regular wages in the work week than they did in the last regular work week before March 1, 2020.

2. If the employee does not have a regular work week, the employee’s wages are considered to be reduced if the employee earns less regular wages than the average amount of regular wages they earned per work week in the period of 12 consecutive work weeks that preceded March 1, 2020.

3. If the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee’s wages are considered to be reduced if the employee earns less regular wages than they did in the work week in which they earned the most regular Wages.

Reduction in Wages

Subsection 9(2), read in conjunction with ss.9(3) and (4), establish when an employee’s wages are considered to have been reduced for the purposes of this regulation.

Assessing whether an employee’s wages are considered to have been reduced is relevant in the application of the following provisions:

• Section 6: an employee is not considered to be on a temporary layoff for the purposes of sections 56 and 63 if the employer has temporarily reduced or temporarily eliminated the employee’s wages for reasons related to COVID-19 during the defined COVID-19 period.
• Section 7: a temporary reduction or temporary elimination of an employee’s wages by the employer for reasons related to COVID-19 during the defined COVID-19 period does not constitute constructive dismissal for the purposes of the ESA. 
• Section 8: complaints filed with the Ministry that a temporary reduction or elimination of an employee’s wages by the employer constitutes the termination or severance of the employee’s employment are deemed not to have been filed if the temporary reduction or elimination occurred during the COVID-19 period for reasons related to COVID-19.

The provision establishes different formulas that apply depending on which of three categories the employee falls into: the employee has a regular work week, the employee does not have a regular work week, or, regardless of whether or not the employee has a regular work week, the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020.  Each of these categories are discussed below:

• Employee has a regular work week

If the employee has a regular work week, the employee’s wages are considered to be reduced if the employee earns less regular wages in the work week than he or she earned in the last regular work week before March 1, 2020. (Note, if the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee falls into category 3.)

However, per ss.9(3), if the employee was on vacation, not able to work, not available for work, subject to a disciplinary suspension or was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere for any part of the last work week before March 1, 2020, then the work week to be applied is, instead, the last regular work week before March 1, 2020 in which such conditions did not apply for any part of the work week.

This formula therefore involves comparing the regular wages the employee earned during the last regular work week before March 1, 2020 in which none of the scenarios set out in subsection 9(3) occurred, to the regular wages the employee earned in the work week in question. 

Work week is defined in s. 1 of the ESA as follows:

"Work week" means,

(a)  a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or

(b)  if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday.

"Regular wages" is defined in ESA Part I, s. 1 as follows:

"regular wages" means wages other than overtime pay, public holiday pay, premium pay, vacation pay, domestic or sexual violence leave pay, termination pay, severance pay and termination of assignment pay and entitlements under a provision of an employee's contract of employment that under subsection 5(2) prevail over Part VIII, Part X, Part XI, section 49.7, Part XV or section 74.10.1.

In order to determine what is the last regular work week before March 1, 2020, it is necessary to first establish the work week that includes March 1, 2020.  From there, look back one full work week.  This will be the last full work that occurred prior to March 1, 2020.  If none of the scenarios set out in subsection (3) apply for any part of the work week, then then this is the work week used in the comparison.  However, if during that work week, any of the scenarios set out in subsection 9(3) applied for any part of that work week, then it is necessary to continue to look back work week by work week to find the first work week in which none of the scenarios set out in subsection 9(3) are present.

Once the comparator work week is established, the regular wages the employee earned in that work week are compared to the regular wages the employee earned in the work week in question (i.e. the work week during the COVID-19 period).  If the employee earned more regular wages in the pre-March 1, 2020 “comparator week” as compared to the work week in question, then the employee is considered to have had a reduction in his or her wages for the purposes of sections 6, 7 and 8.

2.  Employee does not have a regular work week

If the employee does not have a regular work week, the employee’s wages are considered to be reduced if the employee earns less regular wages in the work week than the average amount of regular wages the employee earned per week in the period of 12 consecutive work weeks that preceded March 1, 2020. (Note that if the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, the employee falls into category 3.)

However, per ss.9(4), if the employee was not employed, was on vacation, was not able to work, was not available for work, was subject to a disciplinary suspension or was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere for any part of a work week in the 12-week period referred to in those paragraphs, then that work week is excluded for the purposes of the averaging.

This formula therefore involves comparing the average regular wages the employee earned in the 12 consecutive work weeks prior to March 1, 2020 (or lesser number of averaged weeks if there are any excluded weeks pursuant to ss.9(4)) to the regular wages the employee earned in the work week in question during the COVID-19 period.

Work week is defined in s. 1 of the ESA as follows:

"Work week" means,

(a)  a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or

(b)  if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday.

"Regular wages" is defined in ESA Part I, s. 1 as follows:

"regular wages" means wages other than overtime pay, public holiday pay, premium pay, vacation pay, domestic or sexual violence leave pay, termination pay, severance pay and termination of assignment pay and entitlements under a provision of an employee's contract of employment that under subsection 5(2) prevail over Part VIII, Part X, Part XI, section 49.7, Part XV or section 74.10.1.

In order to establish the period of 12 consecutive work weeks that preceded March 1, 2020, it is necessary to first establish the work week that includes March 1, 2020.  From there, look back 12 work weeks.

Next, determine if during any of those 12 work weeks, any of the scenarios set out in subsection (4) apply for any part of a work week.  If any of the scenarios apply during a work week, that work week is excluded from the averaging calculation, meaning the average is calculated over a period shorter than 12 weeks.  For example, if the only condition that applied during the 12-week timeframe was that the employee was on vacation for a portion of one week, the average of the remaining 11 work weeks would be calculated.

Once the comparator average of the employee’s regular wages is established, the next step is to determine the regular wages the employee earned during the work week in question (i.e. the work week during the COVID-19 period).  If the employee earned more regular wages pursuant to the averaging calculation than the regular wages the employee earned during the work week in question, then the employee is considered to have a reduction in his or her wages for the purposes of sections 6, 7 and 8.

3.  Employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020

If the employee was not employed by the employer during the entire work week that immediately preceded March 1, 2020, then the employee’s regular wages are considered to be reduced if the employee earns less regular wages than they did in the work week in which they earned the most regular Wages. This formula applies regardless of whether or not the employee has a regular work week.

Where an employee falls into this category, a comparison is made between the work week in which the employee earned the most regular wages - regardless of when that occurred during the employment relationship - and the regular wages the employee earned during the work week in question during the COVID-19 period.

If the employee earned more regular wages during any previous work week than he or she worked in the work week in question, then the employee is considered to have a reduction in his or her wages for the purposes of sections 6, 7 and 8.

9(3) For the purposes of paragraph 1 of subsection (1) and paragraph 1 of subsection (2), if the employee was on vacation, not able to work, not available for work, subject to a disciplinary suspension or was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere for any part of the last work week before March 1, 2020, then the work week to be applied is, instead, the last regular work week before March 1, 2020 in which such conditions did not apply for any part of the work week.

Subsection 9(3) affects the application of paragraph 1 of subsection 9(1) and paragraph 1 of subsection 9(2).  These paragraphs establish the formula that applies to determine whether there has been a reduction in hours of work (ss.9(2)) or wages (ss.9(3)) for an employee who has a regular work week.  (These paragraphs do not apply to employees who were not employed by the employer during the entire work week that immediately preceded March 1, 2020.)

If any of the listed scenarios applied to the employee for any part of the last regular work week before March 1, 2020, then this provision provides that the “comparator” week to be used in the formula is, instead, the last regular work week before March 1, 2020 in which none of the listed scenarios applied for any part of the work week. 

The listed scenarios are as follows:

The employee is on vacation

This includes any time during which the employee was on vacation.

The employee is not able to work

This includes any time the employee was not able to work because the employee was, for example, off on sick leave, workers' compensation, or is otherwise unable to work for medical reasons.

The employee is not available for work

This includes any time in which the employee was unavailable for work (for example, because the employee was in jail, or on a Part XIV leave).

The employee is subject to disciplinary suspension

This includes any time in in which the employee was on a bona fide disciplinary suspension that was within the employer's express or implied authority under the contract of employment.

The employee was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere

This includes any time in which the employee was not provided with work by the employer due to a strike or lock-out at the employee’s place of employment or elsewhere.  For example, if there is a strike or lock-out at a supplier, and the employer is a manufacturer dependent upon the supplier for its parts, that employer may be forced to close down until the strike or lock-out is over or a new supplier can be found. In that case, this condition is met.  Whether or not the strike or lockout is legal pursuant to the Labour Relations Act, 1995 is irrelevant in applying this condition

(4) For the purposes of paragraph 2 of subsection (1) and paragraph 2 of subsection (2), if the employee was not employed, on vacation, not able to work, not available for work, subject to a disciplinary suspension or was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere for any part of a work week in the 12-week period referred to in those paragraphs, then that work week is excluded for the purposes of the calculation.

Subsection 9(4) affects the application of subsection 9(1) paragraph 2 and subsection 9(2) paragraph 2. These paragraphs establish the formula that applies to determine whether there has been a reduction in hours of work (ss.9(2)) or wages (ss.9(3)) for an employee who does not have a regular work week.  (These paragraphs do not apply to employees who were not employed by the employer during the entire work week that immediately preceded March 1, 2020.)

If any of the listed scenarios applied to the employee for any part of a work week in the 12-week period referred to in those paragraphs, then that work week is excluded for the purposes of the calculation.

The listed scenarios are as follows:

The employee was not employed

This includes any time during which the employee was not employed by the employer.

The employee is on vacation

This includes any time during which the employee was on vacation.

The employee is not able to work

This includes any time the employee was not able to work because the employee is, for example, off on sick leave, workers' compensation, or was otherwise unable to work for medical reasons.

The employee is not available for work

This includes any time in which the employee was unavailable for work (for example, because the employee was in jail, or on a Part XIV leave).

The employee is subject to disciplinary suspension

This includes any time in which the employee was on a bona fide disciplinary suspension that was within the employer's express or implied authority under the contract of employment.

The employee was not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere

This includes any time in which the employee was not provided with work by the employer due to a strike or lock-out at the employee’s place of employment or elsewhere.  For example, if there is a strike or lock-out at a supplier, and the employer is a manufacturer dependent upon the supplier for its parts, that employer may be forced to close down until the strike or lock-out is over or a new supplier can be found. In that case, this condition is met.  Whether or not the strike or lockout is legal pursuant to the Labour Relations Act, 1995 is irrelevant in applying this condition.

O. Reg. 228/20 Section 10 – Assignment Employees

10.  For greater certainty, this Regulation applies to assignment employees, and sections 6 and 9 apply to such employees with necessary modifications.

Pursuant to subsection 1(2) of this regulation, section 10 does not apply to an employee who is represented by a trade union.

Section 10 provides that sections 6 and 9 of O. Reg. 228/20 apply to assignment employees with necessary modifications.  It also provides “for greater certainty” that this regulation applies, in its entirety, to assignment employees.

Section 6 provides that where, during the defined “COVID-19 period”, an employee’s hours of work or wages are temporarily reduced or temporarily eliminated by the employer for reasons related in whole or in part to COVID-19, the employee is not considered to be laid off for the purposes of sections 56 and 63 of the ESA.  Section 9 sets out the formulas to be used in determining, for the purposes of this regulation, whether an employee has had a reduction in his or her hours of work or wages during the defined COVID-19 period.

An example of a necessary modification to section 6 relates to the reference in that provision to a temporary layoff under sections 56 and 63 of the ESA.  Section 74.11 of the ESA modifies the application of Part XV (“Termination and Severance of Employment”) to temporary help agencies and their assignment employees.  Some of these modifications establish different rules from those under s. 56 and s. 63 to determine when an assignment employee is considered to be on a temporary layoff and what are excluded weeks.  As such, the reference in section 6 of the regulation to sections 56 and 63 of the ESA is to be read to include the relevant modifications to the temporary layoff scheme that are brought about by section 74.11.