Will there be a new wave of lawsuits once the COVID layoffs end?

After more than two years, Ontario’s temporary layoff measure put in place at the start of COVID-19 has come to an end. Now experts say there could be a new wave of lawsuits from workers who have been « left in limbo » during a temporary layoff.

When the pandemic hit in 2020, many workers were laid off temporarily while businesses weathered the initial lockdown storm.

But after more than a month, when it became clear that society would not return to normal any time soon, Ontario enacted Infectious Disease Emergency Leave (IDEL), retroactive to March 1. 2020, which extended the period 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 recalled after this period, he is considered terminated and the employer must pay severance pay.

IDEL has extended this period indefinitely to accommodate the uncertainty of COVID-19. The program called it « deemed » IDEL, where terminated employees were automatically deemed to be on IDEL if their employer reduced or eliminated their hours due to COVID-19.

Much like a regular temporary layoff, workers on emergency leave could collect CERB or EI or even find other work while they wait to be recalled from their leave.

But the pandemic measure continued to be extended even as restrictions eased and people returned to work.

Deemed IDEL ended on July 30, 2022. Since then, workers can only take infectious disease leave without pay if they meet certain conditions related to COVID-19, such as quarantine measures or treatment. medical.

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

This is what happened to Mark.

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

But over time, he and other members of the company stayed home, unsure of what would happen next.

CERB ran out, some of his colleagues were called back, his kids went back to school, and IDEL was extended, along with Mark’s furlough.

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 saw the layoff as a positive thing. He was able to spend more time at home, helping his children learn remotely. But over time, it became a source of stress and affected her mental health.

“Your social fabric is breaking down a bit,” he said.

In 2022 business travel finally started again and Mark thought he could get back to work.

But that didn’t happen.

When IDEL ended in July, he was laid off for 35 weeks. When that layoff ends in April, he will have been on unpaid leave for three years.

« I don’t think they have any intention of bringing 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, a labor lawyer and partner at Samfiru Tumarkin LLP.

When the deemed IDEL measure ended, employers had three legal options, Cerda said. They could recall the employee from their layoff, fire them, or put them on another temporary layoff.

If an employee was terminated after IDEL ended, they may be able to challenge their dismissal, Cerda said. IDEL was a job-protected leave, just like maternity or bereavement leave, which means that employers generally cannot fire workers when the leave ends.

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

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

Labor lawyers have said from the start of the measure that a temporary layoff under IDEL could be considered constructive dismissal under common law, that is, when an employee does argue that he was indeed dismissed and therefore owes severance pay. Many lawsuits have been filed alleging this.

The vast majority of civil cases filed are settled out of court, after considering previous rulings as an indication of where a case might land, Cerda said.

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

It’s unclear how many people have been affected by IDEL and how many have constructive dismissal grounds, Cerda said.

Courts so far have agreed that a temporary layoff, even under IDEL, does not mean an employee cannot file for constructive dismissal, labor lawyer Stuart Rudner said, unless that the employer does not sign an agreement contrary to the workers, which many have done. not.

« We were all in this together at the start, » Rudner said. Workers were prepared to sit still for a while as uncertainty reigned. But the longer the layoff, the less likely they are to give their employer the benefit of the doubt, he said.

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

Rudner agrees. He noted that employees have two years after a layoff to file a constructive dismissal lawsuit, and for many of those who were fired earlier in the pandemic, that time may have elapsed. There was an increase in claims in April and May for this very reason, he said.

But if someone is placed on a further temporary layoff after IDEL ends, they may have a new window to claim constructive dismissal, he said.

« There are potential claims there and that’s unique to Ontario, » he said. « This date of July 30 can really change things. »


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