‘I don’t think they intend to bring me back:’ Labor lawyers say there could be a new wave of lawsuits from workers after temporary COVID layoffs end

After more than two years, Ontario’s temporary layoff measure put in place in the early days of COVID-19 has ended. Now, experts say there could be a new wave of lawsuits from workers who were “left in limbo” during a temporary layoff.

When the pandemic hit in 2020, many workers were temporarily laid off as businesses weathered the storm of initial shutdowns.

But after more than a month, when it became clear that society would not return to normal any time soon, Ontario enacted the Infectious Disease Emergency Leave (IDEL), retroactive to March 1, 2020, which lengthened the period of length of time an employer could legally keep a worker on unpaid leave under the Employment Standards Act (ESA).

Under normal circumstances, the ESA states that temporary layoffs can only last 13 weeks, or 35 weeks if the employer continues to provide benefits to the employee.

If the employee is not called after that period, he is considered fired and the employer must pay severance.

IDEL extended that period indefinitely to accommodate the uncertainty of COVID-19. The program referred to this as “deemed” IDEL, where laid-off employees were automatically considered to be in IDEL if their employer had reduced or eliminated their hours due to COVID-19.

Like a regular temporary layoff, emergency furlough workers could collect CERB or EI or even find another job while they wait to be called back from their furlough.

But the pandemic measure continued to spread even as restrictions eased and people went back to work.

The considered IDEL ended on July 30, 2022. Since then, workers can take unpaid infectious disease leave only if they meet certain conditions related to COVID-19, such as quarantine measures or medical treatment.

And while many workers who had been in the considered IDEL returned to their old jobs during the pandemic or found new ones, others saw the province extend the measure again and again until it ended, with no return to work yet in sight.

That’s what happened to Mark.

Mark, whose full name is being withheld to protect his job, was temporarily laid off along with many of his colleagues in the spring of 2020. He works in training and business development, and since travel and in-person work are no longer options , Mark understood that he would be out of work for a while. He took the opportunity to do some things at home and spend time with his children.

But as time went on, he and others at the company stayed home, not knowing what would happen next.

The CERB was depleted, some of his co-workers were removed, his children went back to school, and IDEL was extended, along with Mark’s license.

Some of his colleagues, in a similar position, gave up and moved on.

“There’s been a bit of an exodus over the last year and a half,” he said.

Initially, Mark viewed the dismissal as a positive thing. He was able to spend more time at home, helping his children with remote learning. But over time he became a source of stress and affected his mental health.

“Your social fabric is torn a little bit,” he said.

In 2022, business travel finally started to pick up and Mark thought he might be able to go back to work.

But that didn’t happen.

When IDEL ended in July, he was put on a 35-week temporary layoff. When he completes that layoff in April, he will have been on unpaid leave for three years.

“I don’t think they intend to bring me back,” said Mark, who wonders if his employer is trying to avoid paying severance pay.

Mark has consulted a lawyer, but has not yet decided what to do.

IDEL protected employers, but left workers like Mark “in limbo,” said Lluc Cerda, an employment lawyer and associate at Samfiru Tumarkin LLP.

When the so-called IDEL measure ended, employers had three legal options, Cerda said. They could remove the employee from his layoff, lay him off, or put him on another temporary layoff.

If an employee was terminated after IDEL ended, they may be able to dispute their termination, Cerda said. IDEL was job-protected leave just like maternity or bereavement leave, meaning employers generally couldn’t fire workers when the leave ends.

If the employee wants to accept the termination, he may be able to negotiate a better severance package for this very reason, he said.

Although IDEL was intended to protect employers from constructive dismissal lawsuits, the move only did so under the ESA, not common law, which is based on previous court decisions and opinions.

Labor lawyers have been saying since the measure began that a temporary dismissal under IDEL could be considered a constructive dismissal under common law, which is when an employee argues that they have indeed been fired and are therefore owed severance pay. Many lawsuits have been filed arguing precisely this.

The vast majority of civil cases filed are settled out of court, after prior decisions are taken into account as an indication of where a case might end up, Cerda said.

There have been three major court decisions regarding IDEL and implied dismissal: two were in favor of the employee and the third was in favor of the employer, but was appealed and overturned on a technicality.

It is not known how many people were affected by IDEL and how many have cause for constructive dismissal, said Cerda.

Until now, the courts have agreed that a temporary dismissal, even under IDEL, does not mean that an employee cannot apply for a constructive dismissal, said labor lawyer Stuart Rudner, unless the employer has made the workers sign an agreement to the contrary. which many did. No.

“We were all in this together at the beginning,” Rudner said. The workers were willing to sit still for a while while uncertainty reigned. But the longer the layoff, the less likely they were to give their employer the benefit of the doubt, he said.

Now that the considered IDEL is over, Cerda believes there will be a new wave of lawsuits, some for constructive dismissal and others for unfair dismissal if the employee was fired after their strike ended.

Rudner agrees. He noted that employees have two years after a termination to sue for constructive termination, and for many laid off earlier in the pandemic, that time may have passed. There was a spike in claims in April and May for this very reason, he said.

But if someone gets another temporary layoff after IDEL ends, they may have a new window to claim a constructive layoff, he said.

“There are potential claims and this is unique to Ontario,” he said. “That July 30 date can really change things.”

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