Infectious Disease Emergency Leave (IDEL) Update

At the start of the pandemic, the Ontario government legislated several relief measures to assist employers and employees. Those measures are now set to expire in one month. Here are the details:

Paid IDEL Extended

The program that provided employees with up to 3 days of paid COVID-related time off (Paid IDEL) was set to expire on July 31, 2022 but has been recently been extended to March 31, 2023.

Specifically, Paid IDEL allows eligible employees to get up to a maximum of $200 per day for up to 3 days off, if the employee is taking the time off due to COVID, including:

Going for a COVID test
Staying home while awaiting results of a COVID test
Having COVID
Getting medical treatment related to COVID
Going to get vaccinated
Experiencing side effects from a COVID vaccination
Self-isolating due to COVID on the advice of an employer, medical practitioner or other authority
Providing care or support to certain relatives for COVID related reasons.

Employers must pay the Paid IDEL out of pocket, but can then apply for reimbursement from WSIB, if they meet certain eligibility criteria. The application for reimbursement from the WSIB must be made within 120 days of making the payment to the employee.

Deemed IDEL Coming to an End

The relief measures that allow employers to temporarily reduce or eliminate an employee’s hours of work due to COVID-related reasons (Deemed IDEL) without triggering termination or constructive dismissal claims is set to expire on July 30, 2022. After the expiry of Deemed IDEL, Employers must once again rely on the limited duration of the layoff provisions in the Employment Standards Act, 2000 (“ESA”).

For employers, this means that after the expiry of Deemed IDEL and any ESA-sanctioned layoff period(s):

employees who’s positions were temporarily terminated will need to be recalled to work to the position they held pre-layoff or if that position does not exist, then to a position that is comparable; and
employees with reduced hours or reduced pay will need to return to their pre-COVID hours/pay.

These arrangements must be made in advance and the employee provided with a reasonable amount of time to arrange their private affairs in order to return to work or take on the additional hours.

Important Notes About Deemed IDEL:
Deemed IDEL only applies to non-unionized employees.

Under the (ESA), temporary layoffs are only available to employers who have a written agreement with the employee allowing the temporarily lay off. Without such written agreement, employers cannot reduce hours or temporarily lay off employees without triggering constructive dismissal claims.

There are currently conflicting cases and much contention about whether Deemed IDEL allows employers who do not have a contractual right to layoff the employee to take advantage of Deemed IDEL. Employers who do not have written layoff agreements with employees who are currently on Deemed IDEL should seek legal advice immediately.

Unpaid IDEL Continues

The portion of the relief measures which allowed employees to take an unpaid, job-protected leave of absence due to Covid-19 will remain in place so long as Covid-19 remains classified as an “infectious disease”.

Unpaid IDEL is permitted where the employee is:

under individual medical investigation, supervision or treatment.
subject to an order of a medical officer of health or a court under the Health Protection and Promotion Act.
in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health.
Directed by the employer to stay at home because of concerns that the employee might expose other individuals in the workplace to the designated infectious disease.
providing care to any of the specified individuals listed above, including because of closures of schools and daycares.
directly affected by travel restrictions preventing the employee from returning to Ontario.
Any other prescribed reason.

Employers may ask for “evidence reasonable in the circumstances,” “at a time reasonable in the circumstances,” to verify the employee’s eligibility for Unpaid IDEL, but may not ask employees to provide medical certificates to justify the leave.

About the Author

Ljubica Durlovska is an Employment Lawyer at HRC Law Professional Corporation. With a passion for employment and labour law, she has spent many years helping employers with a wide range of workplace issues, including assisting clients with employment contracts, discipline, investigations, policy development, accommodation, termination, and employment-related human rights and health & safety matters. Ljubica also has previous experience in corporate/commercial law and leasing.

Contact Ljubica at: ldurlovska@hrcemploymentlaw.com